United States of America: Opened consultation on mergers’ effects on competition for revision of merger guidelines

On 18 January 2022, the Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division opened a public consultation to gather information regarding the impact of mergers on competition, asking stakeholders to provide feedback until 21 March 2022. The FTC stated that from 2020 to 2021, the number of merger filings doubled, which is why the FTC intends to update the federal merger guidelines in order to improve the detection and prevention of anti-competitive deals. The public consultation aims to collect information on the current guidelines and potential adaptations relating to the digital economy. Regarding the purpose and scope of the merger review, the consultation collects information on the clarity of the current guidelines regarding the types of acquisitions that have the potential of creating monopolies. In addition, it asks how well the distinction between acquisitions within the same market and within the same supply chain covers the dynamics of digital markets. Regarding the assessment of a negative impact on competition, the consultation inquires on the level at which the threshold that triggers the presumption of a negative impact should be set and asks about potential alternative criteria that could be taken into consideration for the determination of anti-competitive deals. Furthermore, the consultation investigates how the guidelines could better address the impact of monopsony power on the labour market. Specifically, it examines the effects of concentrations on labour, e.g. when an entity is the only employer in a region and has the market power to set wages differently than in a competitive market. Finally, the consultation inquires about how to address the distinctive characteristics of companies that operate in digital markets. The current guidelines don’t cover the particularities of digital business models and the simultaneous roles that companies play, e.g. acting as a platform provider, seller, data aggregator or operating a multi-sided market.