Yesterday, TechFreedom filed comments to the Department of Justice (DOJ) and Federal Trade Commission (FTC) in response to the agencies’ Request for Information regarding potential revisions to the Horizontal and Vertical Merger Guidelines. TechFreedom’s comments explain that the Merger Guidelines have succeeded in significant part because they do not try to do too much. Rather than complex, lengthy regulations, the Merger Guidelines should provide a flexible and durable framework that reflects the antitrust community’s consensus on how to evaluate the competitive significance of mergers. Any potential changes to the Merger Guidelines should be evaluated in this light.
“Substantial revisions to the Merger Guidelines are neither necessary nor appropriate,” said Bilal Sayyed, TechFreedom Senior Competition Counsel, former Director of the FTC’s Office of Policy Planning and a 20-year veteran antitrust lawyer. “We haven’t seen strong evidence that applying the current guidelines has allowed anti-competitive mergers to escape challenge, and neither the case law nor the economic underpinnings of merger analysis have changed.”
“The Merger Guidelines should not stray from the burden-shifting approach the Supreme Court has adopted, which is consistent with case law,” Sayyed continued. “In the interest of due process, firms should be able to defend their transactions by offering countervailing evidence to the government’s case. Efficiency claims must also remain a part of competitive effects analysis in such cases.”
“Above all, the Merger Guidelines revision process should be incremental,” Sayyed concluded. “Any modest changes ought to reflect a consensus view of the law and of agency practice. Since the courts do not have any obligation to consult these non-binding Merger Guidelines, their influence is a function of their persuasiveness.”
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Sayyed can be reached for comment at media@techfreedom.org. Read our related work on the FTC, including:
- Our coalition letter recommending procedural steps for revisions to the merger guidelines (Mar. 24, 2021)
- The FTC’s New, and Thoroughly Mindless Approach to Mergers, RealClearMarkets (Mar. 9, 2022)
- Overextending the FTC, National Review (Feb. 23, 2022)
- Is Lina Khan Courting a SCOTUS Rebuke?, City Journal (Dec. 2, 2021)
- Our Comments to FTC regarding their Draft FTC Strategic Plan, (Nov. 30, 2021)
- Pride Before the Fall at the FTC?, Law & Liberty (Nov. 2, 2021)
- Our comments to the FTC regarding their rulemaking authority, (Sep. 30, 2021)
- Our comments to the FTC regarding a proposed ban on exclusionary contracts, (Sep. 30, 2021)
- Our comments to the FTC regarding a proposed ban on non-compete clauses, (Sep. 30, 2021)
- Our Comments for the DOJ/FTC Draft 2020 Vertical Merger Guidelines (Feb. 26, 2020)
About TechFreedom:
TechFreedom is a non-profit, non-partisan 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.