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.”


Sayyed can be reached for comment at Read our related work on the FTC, including:

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