FTC Staff Submits Comment to FERC on Assessing the Effects of Proposed Horizontal Mergers on Market Power

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The Federal Trade Commission’s staff submitted a comment to the U.S. Federal Energy Regulatory Commission providing views on how energy regulators should apply the revised Horizontal Merger Guidelines. The revised Guidelines, which the FTC and the Department of Justice updated last year, outline how the federal antitrust agencies evaluate the likely competitive impact of mergers and whether those mergers comply with U.S. antitrust law. The FTC staff comment is in response to a Notice of Inquiry issued by FERC, seeking to determine to what extent its approach should reflect the revised Guidelines.

In the comment, staff from the FTC’s Office of the General Counsel, Bureau of Economics, and Bureau of Competition encouraged FERC to go beyond simple market concentration thresholds and to endeavor to adopt the approach set out in the 2010 Guidelines. Excessive or inappropriate reliance on market concentration thresholds, especially in electricity markets, could lead to conclusions that could be either too lenient or too restrictive. The staff urged FERC to conduct reviews that account for all relevant competitive effects of a merger or acquisition, so as to avoid approving transactions that could lessen competition and harm consumers.

The Commission vote approving the comment was 5-0. (FTC File No. V110010; the staff contact is John H. Seesel, Associate General Counsel for Energy, Office of the General Counsel, 202-326-2702.)

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(FERC horizontal merger review)