The draft merger guidelines currently presents itself like a turducken: a well-crafted description of economic analysis (the chicken) inside a legal brief (the duck) which is in turn wrapped in a set of goals (the turkey). The mashing together of three kinds of content into one document converts what could be a valuable moment to strengthen enforcement into a missed opportunity. The discipline of economics is increasingly able to identify and articulate competition harms, and these advances appear in the draft (e.g., input markets, partial ownership, serial acquisitions, platform economics, and new methods). Furthermore, the empirical evidence that these activities have both harmed competition and are empirically significant is plentiful and accumulating rapidly. The changes to the economics that appear in the draft are strongly justified by the progress of the discipline as well as changes in market realities in the economy. These factors would naturally cause a straightforward revision of the merger guidelines to be a huge hit with the competition community. But that anticipated stature makes it tempting to hitch more material to that wagon—legal analysis and different goals for example. Unfortunately, that additional baggage weakens the originally strong economic content.
I suggest the agencies issue three separate documents that contain the content already developed, thereby freeing each to achieve its goals. This approach would yield the improved economic analysis, a legal brief describing how existing jurisprudence should be used and interpreted by the agencies in enforcement, and a policy statement describing Agency leaders’ goals for enforcement and the priorities that result. Each of these pieces of writing could be made strong as well as focused and accessible, and would, in all probability, have lasting impact.
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