Regulatory Comments

FTC Alumni Comments on Proposed HSR Form

As alumni of the Federal Trade Commission, we are responding to the Agency’s proposed amendments to the premerger notification rules. We have devoted significant portions of our careers to protecting consumers and competition and we continue to care deeply about the Agency and its mission. Moreover, we agree that the notification rules are due for revisions given the passage of time and statutory changes, particularly the Merger Filing Fee Modernization Act of 2022, and that development of an e-filing system would streamline the process. We applaud the FTC for tackling these issues.

We write to suggest several ways in which the FTC might strengthen the evidentiary and legal foundations for the proposed amendments. Because the proposed reporting form requests vast amounts of new information as compared to the existing form, a stronger foundation would help to insulate the proposal from legal challenge and to build congressional support:

  • First, lay a stronger evidentiary basis for the proposed changes by initiating a comprehensive merger retrospective and economic concentration study. In the Notice of Proposed Rulemaking (NPRM), the FTC justifies the broad reporting form by suggesting that the antitrust agencies have systemically underenforced the law against problematic mergers. The NPRM, however, provides little support for this proposition, whereas in contrast, recent studies, court decisions, and retrospectives suggest no underenforcement problem.
  • Second, develop a stronger legal foundation for certain information requests. The proposed reporting form would request detailed information on a range of new topics, such as workplace safety The NPRM should explain, with case citations, why such topics have legal relevance for an initial merger review.
  • Third, ensure that Congress is prepared to fund more personnel, or to extend the statutory time frame in which the Agencies must complete their initial review. According to a recent survey, former enforcers overwhelmingly believe that, with the proposed form, the agencies could not complete their initial merger reviews at current staffing levels within the existing statutory time frame. As a result, prior congressional support becomes paramount.

Again, we applaud the Agency for revising the form. Nevertheless, given the NPRM’s legal and evidentiary shortcomings, we encourage the FTC to adopt only those changes that are required legally, and to table other changes until the Agency lays a stronger foundation.

Read the full letter here.