A Suggested Revision of the 2020 Vertical Merger Guidelines (July 2021)

Abstract

The DOJ/ FTC Vertical Merger Guidelines (VMGs) were adopted by the FTC in June 2020 by a party-line 3-2 party line over the dissent of the Acting Chair. One might expect that the VMGs will be withdrawn and/or revised once a Democratic majority is achieved. In my view, revision is appropriate because the VMGs are both incomplete and overly permissible. This Suggested Revision can aid that process. Rather than trying to start with the current draft, this draft begins on a clean sheet. However, it has been formulated with an eye towards the problems with the current VMGs and so provides a clear contrast with that approach. These draft VMGs include descriptions of a greater range of anticompetitive concerns, additional examples, a more rigorous approach to the parties’ required burden to establish pass-on of elimination of double marginalization, and a number of proposed anticompetitive presumptions. This is a draft, so comments and suggestions are welcomed!

Keywords: mergers, vertical mergers, guidelines, federal trade commission, FTC