Comments to the Justice Department and FTC Regarding Merger Enforcement

The Information Technology and Innovation Foundation’s (ITIF’s) Schumpeter Project on Competition Policy appreciates the opportunity to comment on the Request for Information on Merger Enforcement (“the RFI”) jointly issued on January 18, 2022, by the Department of Justice’s Antitrust Division (DOJ) and the Federal Trade Commission (FTC). The RFI announces the willingness of both federal antitrust agencies to revise merger guidelines—meaning the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. The FTC had already unilaterally rescinded the 2020 Vertical Merger Guidelines, signaling an abrupt shift from the recently adopted guidelines and spurring considerable concerns among the antitrust community.

The RFI raises numerous questions about the merger analysis. The RFI reveals the agencies’ assumptions: Agencies fail to allegedly block mergers because “today’s” analysis has become obsolete. These assumptions—i.e., lax merger enforcement and the need to modernize merger guidelines—appear at best exaggerated, at worst inaccurate.

Before answering key questions of the RFI, ITIF’s Schumpeter Project addresses these assumptions. As antitrust agencies intend to revise merger guidelines, we argue that such revisions should refrain from embracing the populist narrative that pursues market deconcentration and corporate disintegration (through blocked mergers and/or unwinding past mergers) at the expense of companies’ innovation, efficiency, and competitiveness capabilities, and more broadly at the expense of the very process of creative destruction which drives welfare and progress.

Read the filing. (PDF)