The Federal Trade Commission and the Justice Department’s Antitrust Division launched a joint public inquiry Tuesday aimed at modernizing federal merger guidelines to better prevent illegal, anticompetitive deals.
Under antitrust laws passed by Congress, the FTC and the DOJ are tasked with preventing mergers that may substantially lessen competition or tend to create a monopoly in an industry.
The current merger boom has seen a doubling in filings from 2020 to 2021, the FTC and DOJ said in a joint press release They are seeking to ensure that the current guidelines reflect “modern market realities and equip us to forcefully enforce the law against unlawful deals,” FTC Chair Lina M. Khan said.
“Major technological and economic changes, meanwhile, have led to shifts in how businesses compete and grow, creating new interconnections and dynamics across multiple dimensions. For us to accurately detect and analyze potentially illegal transactions in the modern economy, ensuring that our merger guidelines reflect these new realities is critical,” Khan said in a prepared statement Tuesday.
The agencies are looking for input from a broad set of market participants: market participants, government entities, economists, attorneys, academics, unions, employees, farmers, workers, businesses, franchisees and consumers.
“We need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy,” Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division said.
The FTC and DOJ are seeking input on how the guidelines should analyze whether a merger may “‘tend to create a monopoly,’ including in its incipiency, or whether there is a ‘trend toward concentration’ in the industry,” according to Khan’s remarks Tuesday. Further, she said, they are interested in whether existing guidelines adequately assess whether mergers may lessen competition in labor markets, thereby harming workers, and what types of “indicia of market power” the guidelines should consider.The comment period is open for 60 days. Comments can be submitted here and must be received no later than March 21.
