Presumptions in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

Abstract

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in connection with their Request for Information on Merger Enforcement (“Merger RFI”). This comment addresses the questions contained in Section 5 of the RFI related to the use of presumptions in merger enforcement. Our view is that an important objective of the agency’s horizontal merger enforcement guidelines is to ensure that the analytical framework adopted promotes sound antitrust policy. Limiting the use of bright line rules and presumptions to only those supported by economic principles and empirical evidence best achieves this objective. Antitrust agencies should use that evidence to guide decision-making to enforce the antitrust laws to achieve their objectives—that is, to maximize consumer welfare. Presumptions of illegality tend to be appropriate and maximizing welfare for consumers, when economic evidence tells us that the conduct at issue rarely yields any consumer benefits and is likely to cause competitive harm. However, neither economic theory nor the empirical evidence supports the use of concentration-based presumptions of merger illegality and the guidelines should reject them.

Keywords: antitrust, competition policy, horizontal mergers, vertical mergers, Merger Guidelines, Federal Trade Commission, Department of Justice, Clayton Act, Sherman Act, FTC Act, legal presumptions, monopoly, market power, market concentration, Herfindahl-Hirschman Index

JEL Classification: K2, K21, L1, L2, L22, L4, L40, L41