Draft Merger Guidelines Do Not ‘Return Antitrust to a Sound Economic and Legal Foundation’ – A Response to Professor Kwoka
In a recently published article in ProMarket, John Kwoka of Northeastern University (who “worked on the draft Merger Guidelines while serving at the Federal Trade Commission as chief economist to the chair in 2022”) asserts that the U.S. Justice Department (DOJ) and Federal Trade Commission’s (FTC) draft merger guidelines aim to improve “deficient merger enforcement” by focusing on “lessening of competition,” rather than on “consumer surplus.”
With due respect to Kwoka, the draft guidelines, if adopted, would not “return antitrust to a sound economic and legal foundation.” Rather, they would generate costly uncertainty by returning federal merger enforcement to the pre-1980s structuralist era, when “efficiencies” was a dirty word. By discouraging welfare-enhancing merger proposals, they would harm the American economy.