Comments on Draft Merger Guidelines

On July 18, 2023, the Agencies responsible for enforcing antitrust law relating to mergers—the U.S. Department of Justice and the Federal Trade Commission—published draft Merger Guidelines (dMGs) for comment. This comment reflects cumulative experience from four decades as an enforcer, from researching and writing approximately 90 articles and book chapters relating to the competitive effects of mergers and their assessment, and from involvement in the preparation of all prior Merger Guidelines issued by the Agencies over the past half-century. Unlike prior Merger Guidelines, the dMGs do not promote the rule of law by articulating self-imposed limits to the exercise of discretion. As compared with prior Guidelines, the dMGs say less about which mergers the Agencies intend to challenge and especially about which mergers they intend not to challenge. The dMGs are more of a legal brief arguing that the Agencies have enormous discretion and that merging firms have an insuperable burden with any defense put forward.The dMGs assert case law support for the policies articulated, but many of the cases do not support the policies for which they are cited, and many of the policies lack any support in law. As a general matter, the law is less receptive than the dMGs suggest to arguments that mergers substantially lessen competition, and more receptive to rebuttal arguments