December 23, 2020 | less than a minute read

FTC issues commentary on the Vertical Merger Guidelines

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Joseph M. Miller

Member

Get in touch

Joseph M. Miller

Member

The FTC's most recent policy guidance is a helpful compilation covering its modern history of vertical merger enforcement, with links to all of its precedent. See, https://www.ftc.gov/news-events/press-releases/2020/12/ftc-issues-commentary-vertical-merger-enforcement

The Commission split 3-2 on partisan lines to issue the commentary, reflecting the same split on issuing the Vertical Merger Guidelines themselves. The quote below shows two members of the FTC's majority growing frustrated with their colleagues who seem to make generally disapproving noises about without suggesting how they would overcome the existing caselaw and challenges of litigating in the face of evolving economic theory.

Watch this space in the coming months, this could get interesting when President Biden appoints a new FTC Chair, and potentially a new democratic Commissioner which would change the partisan balance of power. The Commission traditionally has not been a partisan organization, we'll see if it remains so.

Commissioners Chopra and Slaughter dissent, not because they quibble with the faithfulness of the Commentary’s recounting of the history of vertical merger enforcement, but because they object to the history itself. That history reflects evolving antitrust jurisprudence, the steady refinement of economic analysis, and the specific facts of each case at issue. Any proposals for a new approach to vertical merger enforcement, which our colleagues have yet to articulate, would need to take into account and grapple with the law, economics, and the evidence in each case. Until then, vague promises of a dramatic and undefined change in enforcement ring hollow.