OTI Says New Merger Guidelines ‘Miss the Mark’

Yesterday, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) issued new internal guidelines for reviewing vertical mergers. The guidelines, which were last updated in 1984, play a significant role in how antitrust agencies evaluate mergers. In February, OTI urged the agencies to strengthen the guidelines and ensure robust public participation. OTI has warned of the harms of vertical mergers, including Comcast’s purchase of NBCUniversal in 2011, AT&T’s acquisition of DirecTV in 2015, and AT&T’s merger with Time Warner in 2018.

The following quote can be attributed to Joshua Stager, senior counsel for New America’s Open Technology Institute:

“These guidelines haven't changed since 1984, during which time competition has waned and inequality has worsened. We hoped the FTC and DOJ would use this process to make our antitrust laws work better for the American people. Unfortunately, the new guidelines miss the mark.

“Rather than refresh outdated thinking, the new guidelines gloss over critical issues and ignore the risks of vertical mergers, particularly in digital markets. Moreover, the FTC denied requests for adequate public comment and canceled a public workshop that was never rescheduled. It is also concerning that the FTC approved the guidelines over the objections of two of the five commissioners. To be effective, this document should represent some degree of consensus.

“Our antitrust laws are not working as well as they should, and this process was a missed opportunity for change. We will continue working with these agencies on other ways to strengthen antitrust enforcement.”