ICLE Statement on FTC’s Continuation of 2023 Merger Guidelines

Jim Fellinger February 18, 2025

PORTLAND, Ore. (Feb. 18, 2025) – The International Center for Law & Economics (ICLE) offers the following statement on Federal Trade Commission (FTC) Chairman Andrew Ferguson’s announcement that the U.S. Justice Department (DOJ) and FTC’s joint 2023 Merger Guidelines will serve as the framework for the agency’s merger-review analysis. 

This quote can be attributed to ICLE President Geoffrey A. Manne:

The 2023 Merger Guidelines represented a radical departure from established antitrust consensus, abandoning decades of pro-consumer-welfare principles, while echoing the anti-economic, anti-competitive agenda of the neo-Brandeisian movement. True continuity would mean upholding sound economic principles and protecting consumers, not embracing a document designed to dismantle them. Chairman Ferguson has rightly noted that the Biden-era FTC initiated a ‘four-year regulatory assault on American businesses’ and ‘hindered economic growth and increased costs to the American consumer.’ We respectfully urge the FTC to reconsider the use of this misguided foundation for merger review and would recommend the commission instead reinstate the 2010 horizontal-merger guidelines as the most expeditious means to ensure continuity of the antitrust principles that have guided courts and enforcement agencies for decades.

ICLE previously outlined legal concerns with the 2023 Merger Guidelines in regulatory comments to the agencies (see also this “tl;dr” explainer), which can be summarized as:

• The 2023 guidelines deviated from the established antitrust consensus and abandoned decades of pro-consumer welfare principles. They overemphasized structural presumptions and did not adequately consider the potential benefits of mergers.   
• There is a distinction between “binding” and “persuasive” authority in the context of agency guidelines. While not legally binding, the merger guidelines can still influence court decisions.   
• The guidelines fail to provide clear guidance on how to distinguish between harmful and beneficial mergers, making it difficult for businesses and practitioners to navigate the regulatory landscape.

To schedule an interview with Geoff, contact Jim Fellinger at [email protected].