FTC, DOJ launch joint inquiry aimed at blocking illegal mergers

The Federal Trade Commission (FTC) and Department of Justice’s antitrust division on Tuesday launched a new inquiry aimed at updating guidelines to block illegal mergers.

The agencies are seeking public input to update guidelines over the next 60 days.

“Illegal mergers can inflict a host of harms, from higher prices and lower wages to diminished opportunity, reduced innovation and less resiliency,” FTC Chair Lina Khan said in a statement.

“We need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy,” Assistant Attorney General Jonathan Kanter added.

The inquiry comes amid a surge in new mergers, filings for which doubled between 2020 and 2021.

The two agencies tasked with antitrust enforcement spent 18 months reviewing their joint guidance on vertical mergers during the Trump administration. The FTC voted last fall to withdraw those guidelines on a party-line vote.

The Department of Justice separately said it intends to review guidelines for both vertical mergers — referring to acquisitions within the same supply chain — and horizontal ones, which deal with competitors.

The announcement Tuesday is one of the first major collaborations between Khan and Kanter, two nominees of President Biden who were strongly backed by progressives.

In a joint release outlining the inquiry, the agencies noted that they are particularly interested in hearing about “aspects of competition the [current] guidelines may underemphasize or neglect, such as labor market effects and non-price elements of competition like innovation, quality, potential competition.”

Critics of antitrust enforcement over the last few decades have raised concerns that focusing solely on the effect of mergers and acquisitions on consumer prices has allowed many anti-competitive mergers to be completed freely.

That has especially been a point of focus for groups worried about consolidation in the technology industry, given that many of the largest companies in the space offer their products for free, or in the case of Amazon at lower prices than their competitors.