This article is a part of the The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway? symposium.
Truth on the Market is pleased to announce its next blog symposium:
The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway?
February 6 & 7, 2020
On January 10, 2020, the DOJ Antitrust Division and the Federal Trade Commission released Draft Joint Vertical Merger Guidelines for public comment. If adopted by the agencies, the guidelines would mark the first time since 1984 that U.S. federal antitrust enforcers have provided official, public guidance on their approach to the increasingly important issue of vertical merger enforcement:
“Challenging anticompetitive vertical mergers is essential to vigorous enforcement. The agencies’ vertical merger policy has evolved substantially since the issuance of the 1984 Non-Horizontal Merger Guidelines, and our guidelines should reflect the current enforcement approach. Greater transparency about the complex issues surrounding vertical mergers will benefit the business community, practitioners, and the courts,” said FTC Chairman Joseph J. Simons.
As evidenced by FTC Commissioner Slaughter’s dissent and FTC Commissioner Chopra’s abstention from the FTC’s vote to issue the draft guidelines, the topic is a contentious one. Similarly, as FTC Commissioner Wilson noted in her concurring statement, the recent FTC hearing on vertical mergers demonstrated that there is a vigorous dispute over what new guidelines should look like (or even if the 1984 Non-Horizontal Guidelines should be updated at all).
The agencies have announced two upcoming workshops to discuss the draft guidelines and have extended the comment period on the draft until February 26.
In advance of the workshops and the imminent discussions over the draft guidelines, we have asked a number of antitrust experts to weigh in here at Truth on the Market: to preview the coming debate by exploring the economic underpinnings of the draft guidelines and their likely role in the future of merger enforcement at the agencies, as well as what is in the guidelines and — perhaps more important — what is left out.
Beginning the morning of Thursday, February 6, and continuing during business hours through Friday, February 7, Truth on the Market (TOTM) and the International Center for Law & Economics (ICLE) will host a blog symposium on the draft guidelines.
As in the past (see examples of previous TOTM blog symposia here), we’ve lined up an outstanding and diverse group of scholars to discuss these issues, including:
- Timothy J. Brennan (Professor, Public Policy and Economics, University of Maryland; former Chief Economist, FCC; former economist, DOJ Antitrust Division)
- Steven Cernak (Partner, Bona Law PC; former antitrust counsel, GM)
- Luke M. Froeb (William C. Oehmig Chair in Free Enterprise and Entrepreneurship, Vanderbilt University; former Chief Economist, DOJ Antitrust Division; former Chief Economist, FTC)
- Eric Fruits (Chief Economist, ICLE; Professor of Economics, Portland State University)
- Douglas H. Ginsburg (Senior Circuit Judge, US Court of Appeals for the DC Circuit; Professor of Law, George Mason University; former Assistant Attorney General, DOJ Antitrust Division)
- Herbert Hovenkamp (James G. Dinan University Professor of Law, University of Pennsylvania)
- Jonathan M. Jacobson (Partner, Wilson Sonsini Goodrich & Rosati)
- William J. Kolasky (Partner, Hughes Hubbard & Reed; former Deputy Assistant Attorney General, DOJ Antitrust Division)
- Tad Lipsky (Assistant Professor of Law, George Mason University; former Acting Director, FTC Bureau of Competition; former chief antitrust counsel, Coca-Cola; former Deputy Assistant Attorney General, DOJ Antitrust Division)
- Geoffrey A. Manne (President & Founder, ICLE; Distinguished Fellow, Northwestern University Center on Law, Business, and Economics)
- Jonathan E. Nuechterlein (Partner, Sidley Austin LLP; former General Counsel, FTC; former Deputy General Counsel, FCC)
- Sharis A. Pozen (Partner, Clifford Chance; former Vice President of Global Competition Law and Policy, GE; former Acting Assistant Attorney General, DOJ Antitrust Division)
- Jan Rybnicek (Counsel, Freshfields Bruckhaus Deringer; former attorney adviser to Commissioner Joshua D. Wright, FTC)
- Steven C. Salop (tent.) (Professor of Economics and Law, Georgetown University; former Associate Director, FTC Bureau of Economics)
- Scott A. Sher (Partner, Wilson Sonsini Goodrich & Rosati)
- Margaret Slade (Professor Emeritus, Vancouver School of Economics, University of British Columbia)
- Kristian Stout (Associate Director, ICLE)
- Gregory Werden (former Senior Economic Counsel, DOJ Antitrust Division)
- Lawrence J. White (Robert Kavesh Professor of Economics, New York University; former Chief Economist, DOJ Antitrust Division)
- Joshua D. Wright (University Professor of Law, George Mason University; former Commissioner, FTC)
- John M. Yun (Associate Professor of Law, George Mason University; former Acting Deputy Assistant Director, FTC Bureau of Economics)
We want to thank all of these excellent panelists for agreeing to take time away from their busy schedules to participate in this symposium. We are hopeful that this discussion will provide invaluable insight and perspective on the Draft Joint Vertical Merger Guidelines.
Look for the first posts starting Thursday, February 6!