On January 18, 2022, the FTC and Department of Justice jointly launched a public inquiry into merger guidelines aimed at strengthening enforcement against illegal mergers. Since issuing the first merger guidelines in 1968, the nation’s antitrust agencies have sought to ensure that these documents accurately set forth current enforcement policy and identify the techniques that we use to detect and assess unlawful mergers.
Keeping with past practice, and in a joint video press conference, the FTC and DOJ issued a request for information, identifying key questions and topics on which the agencies are particularly keen to receive public comment.
Some of the specific areas of interest for public input and information include:
- Purpose and scope of merger review: The agencies seek information on whether the guidelines explain and implement the statutory ban on transactions that “may” substantially lessen competition or tend to create a monopoly, and what harms are contemplated by those standards. The agencies further seek input on whether distinctions between horizontal and vertical transactions reflected in the guidelines should be revisited in light of trends in the modern economy.
- Presumptions that certain transactions are anticompetitive: The guidelines identify certain market circumstances that justify a presumption of competitive harm based on market concentration. The agencies seek information on whether concentration thresholds should be adjusted to improve the efficiency and effectiveness of enforcement, whether alternative metrics or qualitative factors should also trigger presumptions of competitive harm, and evidence regarding the accuracy of such presumptions.
- Use of market definition in analyzing competitive effects: The agencies seek input on potential updates to the guidelines’ market definition analysis to better account for non-price competition. They also seek input on when direct evidence of a transaction’s likely competitive effects, such as evidence of head-to-head competition, may eliminate the need for a separate market definition exercise.
- Threats to potential and nascent competition: The agencies seek input on potential updates to the guidelines’ discussion of potential and nascent competitors, which may be key sources of innovation and competition.
- Impact of monopsony power, including in labor markets: The agencies seek input on how to address the issue of buyer power in more detail in the guidelines. Labor markets are a key example of buyer power, and the agencies seek information regarding how the guidelines should analyze labor market effects of mergers.
- Unique characteristics of digital markets: The agencies seek information on how to account for key areas of the modern economy like digital markets in the guidelines, which often have characteristics like zero-price products, multi-sided markets, and data aggregation that the current guidelines do not address in detail.
The agencies encourage the public, including market participants, government entities, economists, attorneys, academics, unions, employees, farmers, workers, businesses, franchisees, and consumers, to share feedback, evidence, and ideas that may inform revisions to the guidelines. The Request for Information is available at: https://www.regulations.gov/docket/FTC-2022-0003/document.
Comments should be submitted to regulations.gov and must be received no later than Thursday, April 21, 2022 by 11:59pm ET. (The deadline has been extended one month.) The information will be used by the agencies to consider updates and revisions to the guidelines. If such revisions are contemplated in light of the evidence received and the agencies’ independent research, the agencies will publish proposed guidelines for public comment.
Step-by-step instructions to submit a comment on regulations.gov:
- Click Link: https://www.regulations.gov/document/FTC-2022-0003-0001
- Click navy blue “Comment” button on the upper left hand corner
- Submit your comment in 1 of 2 ways:
- Option 1: Start typing comment under “Comment*” - Maximum character limit: 5000 or approximately up to 1,000 words.
- Option 2: Upload file. Valid file types include: docx, pdf, xlsx, etc. Each file cannot exceed 10MB.
- Include your Email Address
- Select identity (under “Tell us about yourself!” you can submit as an individual, an organization or anonymous.
- Complete reCAPTCHA
- Click: “Submit comment”
- After you submit, you should see a screen that says “Submitted successfully!” There will be a comment tracking number in the bottom right corner. E.g.) ab8-nb3n-kr3w
- Copy and save this number for your records.
Need help? See regulations.gov’s FAQs for more information: https://www.regulations.gov/faq