← National Association of Manufacturers (NAM)
FTCNonrulemakingFTC-2022-0003

Request for Information on Merger Enforcement

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National Association of Manufacturers (NAM) filings
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National Association of Manufacturers (NAM) filed 1 comment on this docket between Mar 24, 2022 and Mar 24, 2022. 58 other organizations filed here. The comment window closed 1559d ago.

What National Association of Manufacturers (NAM) filed (1)

Mar 24, 2022· Comment Submitted by National Association of Manufacturers· FTC-2022-0003-0253

Filed on regulations.gov — full text not in the inline record.

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Abstract

U.S. Department of Justice U.S. Federal Trade Commission January 18, 2022 Request for Information on Merger Enforcement The Federal Trade Commission and Antitrust Division of the Department of Justice (“the agencies”) seek public comment on how the agencies can modernize enforcement of the antitrust laws regarding mergers. The Commission and the department have a long history of developing and publishing frameworks for the analysis of mergers under the antitrust laws. The merger guidelines set forth analytical techniques, practices, and enforcement policy of the agencies, and are under review to ensure that they (1) reflect current learning about competition based on modern market realities, and (2) faithfully track the statutory text, legislative history, and established case law around merger enforcement. A key overriding question is how effectively the current guidance documents capture the competitive issues raised by mergers today and whether these documents adequately equip enforcers to identify and proscribe unlawful, anticompetitive transactions. In support of this review, the agencies seek new learning related to firm and market behavior and comments on how these advances should inform the guidelines. The agencies are particularly interested in aspects of competition the guidelines may underemphasize or neglect, such as labor market effects and non-price elements of competition like innovation, quality, potential competition, or any “trend toward concentration.” Finally, the agencies seek specific examples of mergers that have harmed competition, with descriptions of how the merger harmed competition, including how those mergers made it more difficult for customers, workers, or suppliers to work with the merged firm or competitors of the merged firm or made it more difficult for rivals to compete with the merged firm. The agencies encourage the public, including market participants, government entities, economists, attorneys, academics, unions, workers, farmers, ranchers, businesses, franchisees, and consumers, to share feedback, evidence, and ideas that will lead to the development of merger enforcement and policy guidance. The agencies invite submissions addressing the following questions: 1. Purpose, Harms, and Scope a. Does the analytical framework described in the guidelines properly reflect the text and purpose of the Clayton Act, namely, to prevent mergers and acquisitions whose effect “may be substantially to lessen competition, or to tend to create a monopoly”? Are the guidelines sufficiently clear that mergers may be enjoined when there is sufficient risk that they will substantially lessen competition in any relevant downstream or upstream market? Are they sufficiently clear about the circumstances in which mergers may be enjoined because they tend to create a monopoly? b. What effects should be covered by the term “lessen competition”? c. Do the guidelines sufficiently reflect the Act’s concern with mergers that “may” substantially lessen competition? d. Do the guidelines reflect any additional competitive concerns reflected in the statute’s prohibition against mergers that “may … tend to create a monopoly”? Is this statutory language directed at preventing monopolies in their incipiency such as through serial acquisitions, including rollups? How should the guidelines address a merger that may tend to create a monopoly? How should the guidelines analyze whether there is a “trend toward concentration in the industry,” and what impact should such a trend have on the analysis of an individual transaction? e. Do the guidelines sufficiently reflect the observation that assessing the likely effects of a merger “is not the kind of question which is susceptible of a ready and precise answer in most cases”? f. Are the guidelines sufficiently “alert to the danger of subverting congressional intent by permitting a too-broad economic investigation”?

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Request for Information on Merger Enforcement (FTC) — National Association of Manufacturers (NAM) | OpenPolis