Final FTC/DOJ Guidelines Fail to Acknowledge the Benefits of Mergers
PORTLAND, Ore. (Dec. 18, 2023) — Final updated merger-enforcement guidelines published today by the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) fail to incorporate copious public feedback about the benefits of mergers and acquisitions, and as a consequence, courts may be unlikely to follow them, according to scholars of the International Center for Law & Economics.
“As we noted when the draft guidelines were first circulated, the agencies are seemingly looking to reverse time and return to an outdated set of policies from which courts, enforcers, and mainstream antitrust scholars have all steered away,” ICLE President Geoffrey Manne said. “The primary effect of these updated guidelines is to reduce their utility to courts as a reflection of current legal and economic understanding.”
Chief Economist Brian Albrecht added: “While the final guidelines appear to have softened some of the most bellicose language contained in the draft, and to place slightly more emphasis on market power, they still lack clarity in many areas, and particularly with respect to when merging parties can invoke pro-competitive efficiencies as a defense. They focus on the thousand ways the agencies could bring a case and what does not count as a defense, instead of offering real guidance reflecting the state of antitrust law.”
ICLE’s response to the original draft guidelines can be found here. Geoffrey and Brian are available all week to discuss the far-reaching implications of the final guidelines. To schedule an interview with either, contact ICLE Media and Communications Manager Elizabeth Lincicome at [email protected] or 919-744-8087.