In the agencies’ prior Request for Information (RFI), the Chamber expressed support for the concept of updating the Guidelines but questioned whether the agencies would use the revision to attempt to rewrite antitrust law:
In general, although the Chamber has no qualms with the agencies updating the Merger Guidelines to reflect the latest case law and empirical economic analysis, the Chamber has serious concerns that the agencies are attempting to use the RFI to rewrite substantive antitrust law based on faulty economic and legal assumptions. For instance, many of the RFI’s questions reflect a belief that economic concentration is strangling competition, that most mergers harm consumers, and that the Merger Guidelines provide an opportunity to rewrite substantive antitrust law.
Unfortunately, the Draft Guidelines confirm the worst fears of the Chamber and our members. Rather than use the revisions to build upon the constructive bipartisan guidance that has evolved over the past forty years, with each new version incorporating the latest legal and economic thinking, the agencies instead are attempting to use the Draft Guidelines to replace the law with their current leadership’s ideological preferences. As a result, the Draft Guidelines have garnered opposition from scholars, practitioners, and former enforcers from across the spectrum.
In addition to resubmitting our comprehensive earlier comments, the Chamber provides a handful of specific comments on the Draft Guidelines:
- First, the Draft Guidelines do not reflect the current state of the law, and therefore, unlike prior iterations, will hold little value with the courts or business community. Among other deficiencies, the Draft Guidelines rely upon outdated cases, especially when juxtaposed with the need to consider current “market realities,” yet ignore multiple recent losses in which courts have rejected the theories that the agencies now advance in the Draft. As such, these Draft Guidelines seem likely to undermine the agencies’ credibility, especially with the judiciary.
- Second, the Draft Guidelines do not reflect the current state of economic thinking and evidence, particularly the numerous recent studies and cases that recognize the pro-competitive aspects of mergers. As a result of this failure, the Draft Guidelines improperly characterize efficiencies as a narrow defense to a complaint that a merger might reduce competition, rather than as an integral part of the overall analysis. In addition, and contrary to one of the Draft Guidelines’ core tenets, the latest economic data reveals that economic concentration is not increasing across the economy.
- Third, the proposed structural presumptions have no basis in economics or case law. The agencies spin these presumptions out of whole cloth; if adopted, they would distort the review process, giving far too much leverage to the agencies and shifting the entire review process to more of a prior approval regime.
- Fourth, if adopted, the Draft Guidelines would harm consumers and damage the economy. As explained in more detail in our earlier comments, the Draft Guidelines would reduce capital flows, discourage risk and innovation, and punish or deter efficient mergers and other procompetitive transactions, all to the detriment of consumers and long-term U.S. economic competitiveness.
