Merger Guidelines Suggestions sent to the FTC and the Antitrust Division

On January 18, 2022 the FTC and the Antitrust Division requested suggestions for improving the federal Horizontal Merger Guidelines. We filed this comment, urging the enforcers to strengthen the articulations of the incipiency doctrine and the Philadelphia National Bank presumption that are contained in this document. We believe this should be accomplished by including and very briefly explaining in the Guidelines the most important policy rationale underlying them: competitive markets’ need for apparent “redundancy”. The Guidelines should explain how, without these “extra” firms, competitive markets will very often become highly uncompetitive. The incipiency doctrine and the Philadelphia National Bank presumption, by preserving the resiliency enabled by this “redundancy”, helps ensure that the benefits of competition will continue to arise in the medium and even the long term