Comments on the 2023 Draft Merger Guidelines

Abstract

These Comments address the Agencies' 2023 draft Merger Guidelines.

I have three main reactions to the Draft. First, there is plenty here to appreciate, including the decision to introduce or expand the treatment of a variety of important topics from platforms and potential competition to buy-side competition and labor markets, as well as the return of the structural presumption to pre-2010 levels. I also welcome the retention of much of the material from the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. I would, however, have kept all that material in the main body. I understand the appeal of making the main text more accessible and less technical, but I think the guidelines’ success as an accurate and comprehensive technical guide for courts and businesses is very much more important than its success as a lively and brisk read for non-specialists. The latter function is best discharged by other documents.

Second, I think the inclusion in the final guidelines of some of the new material—including above all Guidelines 6, 7, and 8; the conflict-of-interest language in Guideline 10; and the “trend” exception to the assessment of efficiencies—would be a serious mistake, and I strongly recommend that the Agencies take it out. This material is inconsistent with applicable law, with broadly accepted analytical principles, and with Agency practice, and it is facially unconvincing. I do not think courts will be inclined to accept this material. Its inclusion will lead them to distrust and discount the entire document: including the content that is helpful and accurate.

Third, all substance aside and considering only structure, form, and language, I think it would be safer and better to include the valuable new material as an edit to the 2010 guidelines—with which courts are familiar and comfortable—rather than a total reboot of the document. I understand the appeal of a fresh approach, especially in the context of an effort to invigorate enforcement, but I do not think novelty is an advantage in litigation. Quite the contrary: every change in language creates an opportunity for dispute; every dispute creates uncertainty (which bogs down litigation and is rarely resolved by courts to antitrust plaintiffs’ liking); and ultimately ambiguities will be construed against the drafting Agencies. There are enough risks for plaintiffs in antitrust cases as it is! So I would add the incrementally good material while rolling as few new dice as possible. Possibly this perspective is too small-c conservative, but I am not sure that it is any more conservative than the courts in which this document will live or die.