Yesterday, TechFreedom filed comments in response to the Federal Trade Commission’s (FTC) proposed amendments to the premerger notification rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) and to the Premerger Notification and Report Form and Instruction. In conjunction with its submission, TechFreedom has released a data file collecting HSR filing and enforcement statistics.
“The agencies’ implementation of the HSR Act’s notification and waiting period requirements is significantly overinclusive, inefficient, and burdensome to the agency staff and filing parties,” said Bilal Sayyed, TechFreedom Senior Competition Counsel, former Director of the FTC’s Office of Policy Planning, and a 25-year veteran antitrust merger lawyer. “Over the 29 year period 1993–2021, the antitrust agencies received notice of approximately 61,300 acquisitions, opened investigations into just over 8,300, and challenged only 1,274. The Act, and its implementing rules, call for significantly more filings than are necessary to identify and challenge anticompetitive transactions.”
“The Agencies propose to significantly increase the burden on parties to submit an initial HSR filing,” said Sayyed. “Certain information the agencies suggest they may require filing parties to provide is simply not germane to an antitrust inquiry and should not be included with the initial filing.”
“Rather than increase the notification requirements on all parties, the agencies should exempt more transactions from the reporting and waiting period requirements of the HSR Act to free up agency resources,” Sayyed concluded, “The agencies claim to be stretched too thinly to challenge anticompetitive mergers, yet they continue to devote thousands of hours annually to the review of HSR Filings for transactions that history shows have next to zero chance of being the subject of an enforcement action. In 2020, the Commission proposed an exemption for acquisitions resulting in the acquiring person holding no more than 10% of the voting securities of the acquired entity. The Commission should enact this proposal. But they should go further and exempt from the notice and waiting requirements of the Act all acquisitions of voting securities that do not transfer control of the to-be-acquired issuer. This is a nearly cost-free way to free up thousands of man-hours every year that can be applied to the identification and investigation of small, non-reportable acquisitions that transfer control and that may be anticompetitive.”
Find these comments and release on our website, and share them on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at firstname.lastname@example.org. Read our related work, including:
- Our comments to the FTC/DOJ on the 2023 Draft Merger Guidelines (Sep. 18, 2023)
- The Draft Merger Guidelines Abandon the Persuasiveness of their Predecessors, Promarket (Aug. 30, 2023)
- Actual Potential Entrants, Emerging Competitors, and the Merger Guidelines, TechFreedom Paper (Dec. 20, 2023)
- Our comments to the FTC on on merger enforcement (Apr. 21, 2022)
- Our coalition letter recommending procedural steps for revisions to the merger guidelines (Mar. 24, 2022)
- The FTC’s New, and Thoroughly Mindless Approach to Mergers, RealClearMarkets (Mar. 9, 2022)
TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.