By Nathalie Voit
On Tuesday, Jan. 18, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) launched a joint public inquiry aimed at modernizing federal merger guidelines to “better detect and prevent illegal, anti-competitive deals.”
In her opening statement, FTC Chairwoman Lina M. Khan said the agencies were soliciting public input on merger enforcement to ensure existing guidelines were up to date with the realities of modern markets.
“While periodic review of existing guidance is good practice generally, this review of the merger guidelines is especially timely and ripe,” Khan said.
“Global deal-making in 2021 soared to $5.8 trillion, the highest level ever recorded, with the FTC and DOJ receiving more than double the number of merger filings received on average in any of the past five years.”
While massive consolidation has delivered billions of dollars for the finance industry, Khan said the benefits have come at ordinary Americans’ expense.
“Evidence suggests that many Americans historically have lost out, with diminished opportunity, higher prices, lower wages, and lagging innovation. A lack of competition also appears to have left segments of our economy more brittle, as consolidated supply and reduced investment in capacity can render us less resilient in the face of shocks,” she added.
Khan pointed to Congress’s historic role in promoting free and fair competition, noting the “durability and public legitimacy” of the government’s antitrust regime hinged on “the ability of enforcers and courts to adopt.” She said the agencies must remain loyal to the competitive creed “even as markets and business practices shift and evolve.”
Khan identified three main topics of interest to the committee before turning the floor to Assistant Attorney General Jonathan Kanter of the DOJ’s antitrust division.
“Our country depends on competition to drive progress, innovation, and prosperity,” Kanter said. “We need to understand why so many industries have too few competitors and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy.”
Kanter reiterated the need for robust public engagement, stating the agencies need to learn from “market participants what is working and what is not” if antitrust regulations are to be effectively revised.
“The views of consumers, workers, innovators, and others on the ground feeling the harms of market concentration present an incredibly valuable perspective for our efforts. Here is our message to the entire American public: please share your views—we need your input, and we care what you think,” he added.
Kanter also highlighted additional areas of importance to the committee, including how best to interpret the statutory text of the Clayton Act and remain “faithful” to its “full language,” particularly when the agency evaluates transactions by “already dominant firms.”
Click here to watch the full FTC webcast.
