COMMENT: ICLE Experts Available to Discuss FTC Vertical Merger Guidelines

PORTLAND, Ore. (Sept. 14, 2021) — As the Federal Trade Commission (FTC) considers at its Sept. 15 open meeting whether to withdraw guidelines for vertical mergers that the commission adopted in June 2020, antitrust and competition experts from the International Center for Law & Economics (ICLE) are available to discuss the weak theoretical grounding of efforts to expand vertical merger enforcement.

In comments submitted to the commission in February 2020 regarding the then-proposed guidelines, ICLE President Geoffrey Manne and then-Associate Director Kristian Stout noted that, while there may have been a need to update the FTC’s 1984 Nonhorizontal Merger Guidelines, it was not in any way clear that “errors in judicial decisions or enforcement practices have led to widespread problems that are addressed by the proposed changes.”

“We certainly advocate for clarity in the agencies’ enforcement practice with respect to vertical integration, but caution that the agencies carefully consider whether the status quo—as out of date as it may be—is truly inferior to updates that introduce more ambiguity,” Manne and Stout wrote at the time. 

Manne and Stout, along with ICLE Chief Economist Eric Fruits, also published a 2020 paper in the the University of Kansas Law Review examining popular and academic complaints about vertical integration, including vertical mergers. The ICLE scholars ultimately found that the “possibility theorems offered by opponents of vertical mergers to justify invigorated enforcement against them rely on fragile claims that ignore the meaningful distinction between contracts and mergers, and between harms that are likely to arise via horizontal integration and those by vertical integration.”

We invite those following the FTC decision to refer to these resources, as well as to the digital symposium that ICLE hosted in February 2020 at the Truth on the Market website that invited numerous respected Law & Economics scholars to weigh in on the then-draft FTC vertical merger guidelines.

Media interested in interviewing or booking Geoffrey Manne to discuss the subject of vertical mergers may reach him at [email protected] or (503) 780-8515. ICLE Director of Competition Policy Sam Bowman is also available to respond to the FTC decision, and can be reached at [email protected] or +07-59-682-6323.