Washington – The Federal Trade Commission and Department of Justice have released the final version of the 2023 Merger Guidelines that reflect the agencies’ increased scrutiny to further limit mergers and acquisitions for U.S. companies in multi-sided markets.
The guidelines lower the bar for what mergers would be presumptively illegal and would take the U.S. a step closer to European style competition rules by protecting some competitors from competition. The guidelines specifically call out digital platforms, noting the agencies’ focus on whether a merger harms competition “between platforms, on a platform or to displace a platform.”
Earlier this year, CCIA submitted comments to the FTC and DOJ on the draft set of the merger guidelines, underscoring CCIA’s concerns about the agencies’ departure from established antitrust principles including the consumer welfare standard, and instead focusing on structural presumptions and market concentration, with limited attention to merger efficiencies.
The Computer & Communications Industry Association has advocated for competition in the tech industry for over 50 years and fought mergers leading to consolidation that would have harmed competition and consumers including NBC/Comcast and AT&T/T-Mobile.
The following can be attributed to CCIA President Matt Schruers:
“As technology and AI transform more sectors of the economy, creating a special set of regulations that apply only to specific companies doesn’t make good legal or economic sense. The new merger guidelines may risk chilling valuable transactions in ways that would weaken U.S. exporters’ ability to compete globally.”
The following can be attributed to CCIA Vice President of Global Competition and Regulatory Policy Krisztian Katona:
“It is important to periodically review and reexamine merger guidelines to ensure they reflect current practices and market realities. However, merger guidelines should be based on sound economic evidence and reflect actual merger review practice, instead of attempting to create new concepts. The Guidelines’ focus on outdated merger decisions ignores decades of recent case law that emphasizes economic analysis and consumer welfare, which raises the key question whether courts will accept this departure from established economic learning and antitrust principles.”
