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New Merger Guidelines Reflect Seismic Shift Back to Failed Merger Policy, Says ITIF

December 18, 2023

WASHINGTON—Following the release of the Department of Justice (DOJ) and Federal Trade Commission’s (FTC) merger guidelines, the Information Technology and Innovation Foundation (ITIF), the leading think tank for science and technology policy, released the following statement from ITIF’s director of antitrust and innovation policy, Joseph V. Coniglio:

The guidelines demonstrate the DOJ and FTC’s continued intransigence in support of a failed merger policy that views competition and innovation as inherently tethered to structural factors like the number of firms in a market. Courts and prior administrations across both parties rightly rejected this approach decades ago.
The guidelines’ attempt to put old wine in new bottles will harm not just consumers but the U.S. economy. In the face of overwhelmingly critical comments from expert stakeholders, several glaring errors in the previous draft guidelines appear to have been corrected. These include treating the existence of a “trend to concentration” as inherently suspect and inconsistent with an efficiencies defense, as well as inexplicably applying a structural presumption in vertical merger cases.
Unfortunately, rather than reconsider their approach, the DOJ and FTC have radically shifted back towards 1960s merger policy by introducing concentration thresholds that are out of step with the best economic evidence, sanctioning conglomerate merger challenges, and evincing a clear unease with efficiency defenses. To make matters worse, the DOJ and FTC expressly target the “platform” business models that are creating tremendous value for American consumers and driving innovation across the economy.
Thankfully, courts will have the opportunity to rebuff the agencies’ attempt to impose their new guidelines on the U.S. economy, and in so doing, continue to provide a necessary check on the Biden administration’s dangerous approach to merger enforcement.

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The Information Technology and Innovation Foundation (ITIF) is an independent, nonprofit, nonpartisan research and educational institute focusing on the intersection of technological innovation and public policy. Recognized by its peers in the think tank community as the global center of excellence for science and technology policy, ITIF’s mission is to formulate and promote policy solutions that accelerate innovation and boost productivity to spur growth, opportunity, and progress.

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