Note to the FTC: Punishing Efficiency Means Destroying Competition
Yesterday, Lina Khan’s FTC released their long-awaited draft merger guidelines for public comment. Regrettably yet unsurprisingly, the new guidelines are a radical departure from established case law and antitrust thinking. They’re marked by a failure to account for the role of efficiencies in the competitive process, and a failure to distinguish between the implications of generally pro-competitive vertical mergers and horizontal mergers. If the FTC’s 0-4 losing track record in merger litigation so far is any indication, then they’re likely to be struck down by courts nationwide.