Competition Corner by Alden Abbott - Merger Madness
Issue #3
Originally Published March 9, 2022
While we all still have to wait another week for March Madness to begin, I am kicking off the month of madness a little early by thinking about mergers. The FTC and DOJ have asked for comments on rethinking the merger guidelines, striking a noticeably merger skeptical tone and dismissing the impact of efficiencies from scope and scale. Guidelines-related questions posed by the agencies suggest they are considering a highly interventionist departure from tradition, in line with the highly regulatory tone of the FTC’s Annual Statement of Regulatory Priorities, which I highlighted in January. Additionally, due process and the rule of law are under attack at the federal antitrust agencies and national security concerns are growing in the antitrust space as the administration is shying away from strong patent rights.
In the flagship spot this month, I am pleased to present a discussion with sitting FTC Commissioner Noah Phillips. In this long-form podcast, Commissioner Phillips and I discuss recent changes at the FTC, developments in antitrust, rewriting the merger guidelines, possible privacy legislation, and more.
In addition to two Truth on the Market commentaries, the first discussing antitrust and national security after the failed Lockheed/Aerojet merger and the second concerning due process and the rule of law, I am also highlighting my comments to the FTC and DOJ with regard to the rewriting of the merger guidelines.
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Antitrust Competition and its Intersection with Privacy Data Protection - Mercatus Center
“The more things change, the more they stay the same.”
This sentiment was first expressed by FTC Commissioner Christine Wilson during the inaugural Mercatus Antitrust Forum, and again was echoed by FTC Commissioner Noah Phillips during our recent interview. In this podcast with my former colleague, I sat down with Commissioner Phillips and talk about all things FTC, including consumer protection, antitrust, monopolies, privacy, and competition policy.
New Merger Guidelines Should Be Concise, Be Administrable, and Avoid Antimerger Bias - Mercatus Center
The request for information on merger enforcement, published by the FTC and DOJ, sets forward 91 questions looking down nearly every possible rabbit hole that can be found in merger analysis. Drafting highly detailed guidelines based on the merger skeptical tone of the request could foster business confusion and alienate the courts, leading them to accord far less weight to agency positions in merger litigation. In both a commentary for Truth on the Market and in this formal comment to the agencies, I outline significant flaws in the request’s questions and urges a cautious and measured approach to revising the merger guidelines, keeping in mind the knowledge and economic analysis that has been amassed over the past 50 years of antitrust enforcement.
The Internationalization of Due Process, Federal Antitrust Enforcement, and the Rule of Law - Truth on the Market
Due process and the rule of law are the fundamental cornerstones of any sound legal system. Promoting their acceptance overseas has been a high priority for the U.S. antitrust agencies, in order to enhance the effectiveness of antitrust enforcement worldwide. Recent developments at the agencies, however, have led to worrisome cracks emerging in the foundation at home. By limiting stakeholder input in rulemaking, abruptly withdrawing key policy statements and guidelines, and without consultation putting forward documents that strike a merger and patent skeptical tone, the FTC and DOJ have taken steps that are antithetical to sound due process principles. In this commentary for Truth on the Market, I discuss these developments in detail, and urge a return to traditional sound rule of law and due process standards.
Antitrust Policy and National Security Interests - Truth on the Market
For over four decades, mainstream antitrust enforcers have advanced the idea that antitrust is a consumer welfare prescription. However, recent suggestions by the Biden administration have moved away from this idea to promote a broader definition of antitrust, not centered around consumers. In a hot off the press commentary for Truth on the Market, I look at whether consumer welfare-centric antitrust is consistent with American national security interests. An evaluation of defense industry mergers, intellectual property, and proposed highly interventionist antitrust legislation reveals that sound antitrust generally is in harmony with national security interests, but that those interests may be under undermined by unprincipled application of antitrust.
Recent Events
March 8, 2021: Views on the 2021 Draft Policy Statement on Standards Essential Patents
In a panel moderated by Suzanne Munck of Davis Polk, Brian Love of Santa Clara University Law School, Anne Cappella of Weil Gotschal, Taraneh Maghame of VIA Licensing Corporation, and I explored the recently issued Draft Policy Statement on Licensing Negotiations and Remedies for SEPs Subject to Voluntary F/RAND Commitments. We discussed how U.S. patent, standards, and competition policies can help to effectively balance the interests of SEP holders, downstream innovators, and consumers in the voluntary consensus standards process.
What’s Alden Reading?
TechREG™ Chronicle – Cryptocurrency - Competition Policy International
Following the recent Global Antitrust Institute Symposium and hearing Thibault Schrepel discuss antitrust and the blockchain, I think it is worth looking at cryptocurrency more in-depth. The cryptocurrency issue of the TechREG Chronicle from Competition Policy International presents a thought provoking survey of some of the biggest issues in cryptocurrency today. I would like to specifically highlight an article Florian Deuflhard & C.-Philipp Heller discussing market definition in the crypto economy.