FTC tees up withdrawing vertical merger guidelines

The agenda for the agency’s Sept. 15 meeting includes an item proposing withdrawal of the guidelines adopted in June 2020, as well as commentary on vertical merger enforcement issued in December 2020.

The guidelines were jointly proposed in January 2020 by the FTC and Department of Justice’s Antitrust Division and replaced the antiquated 1984 Non-Horizontal Merger Guidelines. The creation of updated guidance marked the first time the two agencies collaborated in such a way.

Vertical mergers combine two or more companies operating at different levels in the same supply chain. The guidelines are designed to help the agencies identify mergers that would harm competition while also not interfering with mergers that either wouldn’t impact competition or would impact it in a positive way.

Withdrawal of the 2020 guidelines would not come as a huge surprise. The FTC has indicated it will become a much more aggressive antitrust watchdog under Khan; it has already reversed a 1995 “prior approval” stance for mergers, as well as a 2015 statement that imposed guardrails on its antitrust authority.

Khan and Richard Powers, acting assistant attorney general for the Antitrust Division, issued a joint statement in July, noting revisions to existing antitrust guidance were under active consideration.

“We must ensure that the merger guidelines reflect current economic realities and empirical learning and that they guide enforcers to review mergers with the skepticism the law demands,” the statement said. “The current guidelines deserve a hard look to determine whether they are overly permissive. We plan soon to jointly launch a review of our merger guidelines with the goal of updating them to reflect a rigorous analytical approach consistent with applicable law.”

The Justice Department declined to comment regarding the FTC’s proposed withdrawal of the guidelines.

Withdrawing the guidelines, instead of simply reworking them, would apparently leave the FTC falling back on the 1984 version that even Democrats admit is woefully out-of-date.

The FTC already tipped its hand regarding how enforcement actions against vertical mergers will be handled differently, even before Khan took over as chair. In March, the agency filed its first lawsuit in decades challenging a vertical merger when it issued an administrative complaint to block Illumina’s $7.1 billion proposed acquisition of Grail, a maker of an early detection liquid biopsy test that can screen for multiple types of cancer in asymptomatic patients at very early stages using DNA sequencing.

When the new guidelines were proposed in January 2020, Democrats signaled their opposition to it. They were outvoted by what was then a Republican majority on the FTC under then-President Donald Trump.

Democratic FTC Commissioner Rebecca Kelly Slaughter abstained from voting to release the revised guidelines, even though she said they had plenty of advantages and benefits over the 1984 version. Flaws she cited with the new guidelines included a safe harbor for firms with less than 20 percent market share.

“While I am uncomfortable with any safe harbor, I am particularly uncomfortable with one that sets a threshold without evidentiary support,” she wrote.

Other issues Slaughter had included the guidelines’ departure from past practice at the FTC to use its power “to stop anticompetitive mergers in their incipiency,” as well as what she considered a lack of emphasis for investigating the full range of competitive harms posed by any particular vertical merger.

The FTC currently has a 3-2 Democratic majority so long as Rohit Chopra’s nomination to take over as director of the Consumer Financial Protection Bureau remains in legislative limbo. The CFPB is currently led by Acting Chair Dave Uejio.