University of California at Berkeley - School of Law; National Bureau of Economic Research (NBER); New York University (NYU) - Center for Law and Business
These comments on the DOJ and FTC draft merger guidelines were submitted on Sept. 15, 2023.
We are concerned, however, about aspects of the draft guidelines that could be read to interfere with their ability to implement our shared objective effectively, by making it more difficult for enforcers to rely on economic analysis to discriminate between mergers that risk harming competition and those that do not. Such an approach to merger enforcement would limit the influence of the dMGs and potentially undermine their capacity to benefit buyers and suppliers in the affected markets, foster economic growth, and lessen inequality. The comments below explain these concerns more fully.
Baker, Jonathan B. and Gavil, Andrew I. and Gilbert, Richard and Hovenkamp, Herbert and Katz, Michael L. and Melamed, Doug and Scott Morton, Fiona M. and Rubinfeld, Daniel L. and Shapiro, Carl and Shelanski, Howard A., Comments of Economists and Lawyers on the Draft Merger Guidelines (September 18, 2023). U of Penn, Inst for Law & Econ Research Paper No. 23-45, Available at SSRN: https://ssrn.com/abstract=4574947 or http://dx.doi.org/10.2139/ssrn.4574947
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