The Antitrust Divergence at the FTC: Beyond Vertical Mergers

Abstract

Partisan splits on antitrust enforcement are not new, but some recent divides have gone beyond the usual differences between Republicans and Democrats. Today, we see disagreements among commissioners at the Federal Trade Commission on foundational aspects of competition policy, such as the goals of enforcement, the FTC’s burden of proof, and the role of economic evidence. This divergence found its fullest expression in two vertical merger consent decrees—Staples/Essendant and Fresenius/NxStage Medical—but the policy differences that led to such divergent views in those cases are unlikely to stay limited to the vertical merger context.

In many respects, the recent divergence among commissioners on key aspects of merger enforcement echoes the broader debate in legal, economic, and policy circles about the goals and effectiveness of recent antitrust enforcement. The implications for practitioners and their clients (as well as agency staff ) are negative, including longer merger reviews and less predictable enforcement.

Keywords: antitrust, competition law, FTC, Federal Trade Commission, New Brandeis, consumer welfare standard, Staples, Fresenius

JEL Classification: K21