On January 18, 2022 the US Department of Justice (DOJ) and the U.S. Federal Trade Commission (FTC) issued a Request for Information (RFI) on Merger Enforcement. In the RFI, the two US antitrust agencies sought public comment on how the agencies can modernize enforcement of the antitrust laws regarding mergers. Among other things, the agencies noted that the 2010 Horizontal Merger Guidelines (HMG) are under review, to ensure that they reflect current learning and modern market realities. The ten-page RFI thoroughly examines many aspects of antitrust merger analysis, listing 165 questions pertaining to 15 topics, including: the purpose, harms, and scope of the HMG; coordinated effects; unilateral effects; presumptions; digital markets, and nascent competition, among others.
The HMG are a product of much thought and experience, built on the agencies’ continual learnings from using analytical techniques and implementing antitrust enforcement policies. As all would agree, while periodic examination can update learnings and facilitate improvements, modifications of the HMG need to be thoughtful and grounded on clear indications of what does and does not work, why, and why the new techniques or practices will address the flaws.
In this short article, Dr. Tsai offers her thinking on a few questions the RFI raised regarding presumptions, unilateral effects, and nascent competition.