WASHINGTON—Following memoranda issued by the acting leadership of the Department of Justice (DOJ) and Federal Trade Commission (FTC) stating that the 2023 Merger Guidelines remain agency policy, the Information Technology and Innovation Foundation (ITIF), the leading think tank for science and technology policy, released the following statement from Joseph V. Coniglio, director of antitrust and innovation:
It is very unfortunate that the new Trump administration is doubling down on the highly flawed 2023 Merger Guidelines. As ITIF warned at their inception, these guidelines constitute a transparent attempt to reinstate a failed merger policy that harmed innovation, competition, and consumers.
Privileging stability and the status quo for their own sakes is neither conservative nor prudent amidst antitrust institutions left in disrepair after four years of mismanagement by the Biden administration. Continuing these problematic policies will only exacerbate the growing crisis in agency credibility.
Guidelines should only be endorsed when they accurately reflect existing law and sensible policy. The 2023 Merger Guidelines do neither. Instead, they put forward lower HHI thresholds with no real basis in either case law or sound economics. Procompetitive transactions will be chilled as a result.
Today’s actions are not justified by the uncertainty created by the 2023 Merger Guidelines and an inability to reach a consensus to withdraw them. The antitrust bar and business community would be better served by an exhortation to be guided by the extensive judicial precedent that informs when a merger is unlawful.
Given that the new DOJ assistant attorney general and new FTC commissioner are not yet confirmed, these memoranda should be a wake-up call for the many U.S. senators who want antitrust policies that will drive American innovation, lower prices for consumers, and support U.S. competitiveness against China.
ITIF is committed to advancing a pro-innovation competition policy on a nonpartisan basis. It will continue to criticize harmful antitrust actions by the new Trump administration just as it did during the Biden administration.
Contact: Sydney Mack, [email protected]
