The authors present some of the particularly significant topics that emerged in the comments and workshop discussions following the release of the joint draft vertical merger guidelines.
Note: On June 30, 2020, the Department of Justice and Federal Trade Commission issued revised Vertical Merger Guidelines (VMGs). Many of the comments and suggestions raised below were reflected in the 2020 VMGs. For example, the importance of incentive and ability were recognized and used as the foundation for an economically sound set of safe harbors in vertical cases
On September 15, 2021, the FTC voted to withdraw from these guidelines. The majority statement in that decision took issue with separate sections of the 2020 VMGs related to elimination of double markup and efficiencies while endorsing the advances made through this comment process on the core sections: “The 2020 VMGs represent a substantial improvement over the 1984 guidelines that they replaced and address important principles such as raising rivals’ costs, foreclosure, and misuse of competitively sensitive information.”
In January 2020, the DOJ and the FTC released the first joint draft vertical merger guidelines in the agencies’ history. In the public comment period that followed, seventy-four comments were submitted by a range of authors, from economists and antitrust lawyers to consumer and small business advocacy groups. The DOJ also held a workshop with antitrust practitioners to discuss the issues that arose in the comments.
Both the written comments and discussions at the workshop generally applaud the draft guidelines as an improvement over the DOJ’s 1984 non-horizontal guidelines. Commenters and workshop participants, however, suggested several changes, ranging from minor revisions to major overhauls in the framework of the guidelines.
The authors present some of the particularly significant topics that emerged in the comments and workshop discussions. In an article that serves as a useful reference point for practitioners, they synthesize the debate on issues such as:
- If vertical mergers should be presumed to be procompetitive
- Upstream-downstream relationships
- Unilateral effects
- The usefulness of a safe harbor
- An overarching framework for the guidelines
Overall, the written comments and workshop discussions show that practitioners want more concrete guidance than what is currently in the draft guidelines. There is, however, little consensus over how much weight to give theories of harm, empirical evidence, or potential consumer benefits. A further lack of consensus exists over the guidelines’ scope and whether it should be limited to traditional supply-chain relationships. This uncertainty reflects the fact that non-horizontal relationships are inherently more complex than horizontal relationships.
This article was originally published by Law360 in April 2020.
The views expressed herein do not necessarily represent the views of Cornerstone Research.
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