The authors synthesize the comments submitted to the agencies’ RFI and outline possible paths forward for merger enforcement.
On April 21, 2022, the comment period ended for the joint Request for Information (RFI) issued by the FTC and DOJ (the agencies) that sought input on merger enforcement. The RFI indicated the potential for a broad-reaching review of merger enforcement, with 91 questions in 15 topic areas. The agencies launched this request after a year of policy actions, particularly at the FTC, that seemingly signaled dissatisfaction with the merger enforcement status quo.
The RFI generated substantial interest, with over 1,900 comments from academic economists, practitioners, industry groups, and concerned citizens. In this article, authors Ana McDowall, Andrew Sfekas, and Bryan Pine conduct a review of the comments, focusing on in-depth submissions by academics, attorneys, and industry groups. The comments indicate there are significant divisions in views about how to revise the Guidelines—to the point that the agencies could choose any number of divergent paths that would find support in the comments.
This article was originally published by Law360 in June 2022.
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