The American Prospect - New Merger Guidelines Quietly Reshape the Business Landscape

Covering the newly-released merger guidelines from the Justice Department and Federal Trade Commission, reporter Luke Goldstein with The American Prospect cited Open Markets’ comments to the agencies on the importance of new guidelines and ways to strengthen them.

This week, the Antitrust Division at the Department of Justice and the Federal Trade Commission released the final version of the new Merger Guidelines, first announced earlier this summer.

The legal document amounts to a new corporate charter for American commerce that sends a clear message: In order to grow, companies will have to focus on investing in product, innovation, and job quality instead of relying on acquiring competitors through mergers and acquisitions. It is a significant accomplishment for antitrust regulators that restores their ability to enforce the laws as originally intended by Congress, which had been hemmed in by previous versions of the guidelines…

Certain antitrust groups, including the Open Markets Institute, had urged regulators to go a step further to strengthen the guidelines as first proposed. In a public comment, Open Markets, joined by numerous civil society groups, recommended lowering the structural presumption threshold that triggers merger enforcement. OMI suggested that a 15 percent market share held by the combined firm would be sufficient to block the deal instead of the proposed 30 percent. The final merger guidelines maintain the threshold at greater than 30 percent.

“The thresholds would capture only the most problematic mergers in the most concentrated markets and would fail to include mergers in markets that are trending toward concentration or borderline cases that could raise red flags,” the letter said.

The release of the guidelines caps a series of victories over the past few days for the antitrust authorities.

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