The Whole Foods Appeal — Wrong, but Maybe Good.
The FTC has filed its primary appellate brief in the Whole Foods case. In essence, the brief asserts two claims: that the district court evaluated the Commission’s request for a preliminary injunction under an overly stringent legal standard, and that the court improperly discounted the Commission’s evidence that a Whole Foods/Wild Oats merger would reduce competition and harm consumers. While the Commission is wrong on both points, this appeal might be a good thing — it could provide the courts (maybe even the Supreme Court!) with an opportunity to do some much-needed house cleaning on merger policy.