Washington, D.C. (07/20/23) – Yesterday, the Federal Trade Commission (FTC) and Department of Justice (DOJ) released a new set of draft merger guidelines.
While only Congress has the power to change antitrust law, Khan and Kanter are doubling down on their extreme agendas – which have been rejected time and time again in court – by proposing new merger guidelines that, according to experts, would undermine long-standing principles meant to protect consumers and competition and threaten American competitiveness on the world stage.
“As technology and AI infuse 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. Without appropriate revision, these guidelines risk chilling valuable transactions in ways that would weaken U.S. exporters’ ability to compete globally.”
“…By making it less attractive to start a new business or invest in a new company, we are giving our foreign competitors a distinct advantage. Innovators will take their next great idea elsewhere, to a country where these rules don’t apply and they’ll have greater opportunity…[These guidelines] will have devastating and unintended consequences on our global competitiveness and national security…”
“…First, the agencies should promote clear, transparent, and predictable rules grounded in decades of antitrust precedent, and avoid departures that create uncertainty in the market. Second, the agencies should recognize that the technology startup market is flourishing and successful, and potential acquisitions are an important driver of investment and innovation in that market…
“…We encourage the agencies to aim for meaningful transparency and certainty, avoiding departures from established antitrust principles that have helped support a vibrant consumer technology sector…”
These new guidelines come days after the FTC’s high-profile loss in an effort to challenge a merger between Microsoft and Activision Blizzard, the latest in a string of court cases where judges have rejected FTC Chair Khan and Assistant Attorney General Kanter’s extreme agendas.
“…In tallying up the losses, it’s hard to know where to start. The regulatory parade of follies includes the agency’s debatable effort to block Altria’s minority equity investment in Juul, a struggling e-cigarette maker; its puzzling suit to block Facebook’s acquisition of Within, a metaverse fitness app; and now a federal court’s rejection of its challenge to Microsoft’s acquisition of the video-game publisher Activision (which the FTC immediately appealed)…
“…By adopting a ‘big is bad’ approach to merger review that overlooks a well-developed economic literature rejecting inferences of competitive harm based merely on firm size or a certain type of business practice, the FTC has brought a case that threatens to entrench incumbents, suppress innovation and harm consumers…”
“The attempt to block the merger between UnitedHealth and Change was the cornerstone of the Biden administration’s antitrust agenda and coincided with a major challenge to a merger deal in the publishing industry…
“…Executives at competitors such as Aetna, Cigna and Elevance Health told the court that the deal would not stifle innovative ideas at their companies. UnitedHealth leaders, including current CEO Andrew Witty and former chief David Wichmann, testified that Optum already has access to other insurers’ data and misusing that information would be hugely harmful to that business…”
The Don’t Break What Works campaign is powered by the Computer and Communications Industry Association (CCIA). Learn more here.