Purpose, Harms, and Scope in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

Abstract

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in response to their Request for Information on Merger Enforcement. This Comment addresses the questions related to Purpose, Harms and Scope. Our view is that the essential and defining purpose of merger guidelines is to identify and describe how the agencies assess the legality of mergers. Such guidelines help assure reasonable and consistent agency review of mergers, and effectively enable businesses to comply with the law. The agencies’ role in providing clear and accurate guidance is critical in light of both the significant costs of enforcement and compliance, and the enormous variety of mergers subject to review. Flawed or vague agency standards are likely to discourage procompetitive transactions, limit growth and impose substantial costs on the parties.

At present, there is no basis for significant departure from – much less wholesale rejection of – the current guidelines. Those guidelines represent the culmination of more than seventy years of enforcement experience under the current version of Clayton Act Section 7. Since the mid-1970’s trend toward case-by-case analysis informed by sound economics, U.S. economic success and innovation have been unrivaled. Any recommendation for fundamental change in the character of merger analysis would require strong reasons for a profound departure from the present expert consensus. The guidelines’ broad and flexible categories and methods of analysis are properly designed to capture any novel theories of anticompetitive harm and to apply to new and innovative forms of competitive conduct as they arise. As a document intended to describe agency practice, the guidelines should continue to focus on the agencies’ own approach, and on ensuring a careful, fact-based analysis of each case, as informed by sound economics.

Keywords: antitrust, competition policy, horizontal mergers, vertical mergers, Merger Guidelines, Federal Trade Commission, Department of Justice, Clayton Act, Sherman Act, FTC Act

JEL Classification: K2, K21, L1, L2, L22, L4, L40, L41