Ferc Merger Analysis Post-Order No. 888 : Where Do We Go from Here?

The U.S. electricity industry - once the most stoic of industries - is currently is a state of great turmoil and flux. The root of this turmoil stems directly from Federal Energy Regulatory Commission's ("FERC") ostensible efforts to bring "competition" and "de-regulation" to the electric utility industry through Order No. 888 and its progeny. In response to this recent onslaught of Section 203 merger applications, FERC's has issued a Notice of Proposed Rulemaking (NOPR) to codify its ad hoc merger analysis. As explained herein, because FERC's proposed codification of its various ad hoc merger analyses into a single "cohesive" paradigm unfortunately perpetuates the same flawed analytical assumptions underlying FERC's overall restructuring efforts, FERC's NOPR simply exacerbates the reality that FERC's restructuring policies tragically will harm - rather than appropriately benefit - overall consumer welfare