FOR IMMEDIATE RELEASE: September 19, 2023 

CONTACT: Ashley Woolheater, woolheater@openmarketsinstitute.org 

WASHINGTON – The Open Markets Institute and partners including SEIU, Rural Advancement Foundation International-USA (RAFI-USA), Public Citizen, and more, have submitted a comment urging the Justice Department (DOJ) and the Federal Trade Commission (FTC) to strengthen and clarify the new, draft merger guidelines. 

In the comment, the groups applaud the agencies for rejecting the 40-year trend that shifted their focus from “clamp[ing] down with vigor on mergers” to instead promoting narrow and economically dubious notions of “efficiency.” By anchoring the draft guidelines to the text of the Clayton Act and binding Supreme Court precedence, the Agencies, in the draft guidelines, demonstrate their intent to apply the law as Congress intended.  

While the draft merger guidelines are a step in the right direction, our comment urges the Agencies to clarify and strengthen them in several ways. Those include:  

1. Lowering the structural presumption thresholds. In the draft guidelines, 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. We recommend, for instance, reducing the market share threshold for mergers involving rivals from 30% to 15% and for mergers between buyers and sellers from 50% of market share to 25%. 

2. Eliminating the efficiencies defense for presumptively illegal mergers. 

3. Clarifying market definition rules and processes, including by prioritizing qualitative evidence – such as local knowledge – in defining markets. 

4. Stating, in line with legal precedents, that internal expansion is a superior method of growth compared to M&A. 

5. Giving due consideration to online communications platforms' ability to manipulate and interfere with the public’s ability to speak, debate, and share news, and the extreme concentration of production capacity for essential goods. 

Read full comment below or download here.

The comment was also signed by the following groups and individuals: Athena Coalition, Campaign for Family Farms and the Environment, Economic Security Project, Fight for the Future, Food & Water Watch, Future of Music Coalition, Governing for Impact, HEAL Food Alliance, Jobs with Justice, Main Street Alliance, NextGen Competition, Public Citizen, Rural Advancement Foundation International-USA (RAFI-USA), Revolving Door Project, Service Employees International Union (SEIU); Cristina Caffarra, Economist, Expert, Co-Founder, CEPR Competition Research Policy Network; Mark Glick, Professor of Economics, University of Utah; Hal Singer, Professor of Economics, University of Utah; Tommaso Valletti, Professor of Economics, Imperial College Business School. 

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