In a recent op-ed for Politico, Ankush Khardori, an attorney and former federal prosecutor for the Department of Justice (DOJ), points out the noticeable lack of evidence behind the DOJ and Federal Trade Commissions’ (FTC) proposed merger guidelines.
Khardori provides important context on the seismic shift behind the agencies’ departure from longstanding legal precedent and competition policy – and ultimately, underscores the likely harm of these reforms to consumers and the economy.
Highlights from the op-ed are included below:
- “The proposal has been praised by progressive activists but faced significant blowback elsewhere. Two prominent Obama administration officials took to op-ed pages to sharply criticize the draft; antitrust scholars have been hotly debating the merits of the proposal; and lawyers in the private sector have issued pointed critiques.”
- “…it is critical for understanding the intensity of this debate to know that the Justice Department’s antitrust division under Kanter, and the FTC under Khan have not been faring particularly well in the courts since they were confirmed in 2021.”
- “A judge rejected the DOJ’s challenge to a merger in the health care technology industry after concluding, among other things, that the case ‘rest[ed] on speculation rather than real-world evidence.’ A merger challenge in the agriculture industry fell apart because the department ‘ignore[d] the commercial realities’ of the sector. Another judge dismissed a case brought to block a merger in the defense industry, arguing that the government had attempted to ‘gerrymander its way to victory’ by proposing a narrow analytic framework that did not reflect ‘market realities.’ After these losses, the department either did not appeal, eventually dropped its appeal, or lost its appeal.”
- “Against this backdrop, the newly proposed merger guidelines read a lot like a strategic public lobbying effort — a bid to will into existence an expansive and enforcement-friendly legal framework that modern courts have not endorsed either in the particulars or in broad strokes, and whose wisdom as a matter of domestic economic policy is open to serious question.”
- “Unless the guidelines are meaningfully revised following this comment period — among other things, to clarify the relevance and priority of consumer interests in the agencies’ analysis and to loosen or discard some of the stringent rules whose contemporary legal underpinnings are dubious — it is far from clear whether the final product will receive the same level of deference in the courts. Indeed, the result could be to undermine the agencies’ credibility among the judiciary and to exacerbate a losing trend that is already bad enough.”
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