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1/ Popping briefly back online (and away from my sweet newborn) with a slightly belated thread to explain why I voted no on the final vertical merger guidelines released by the @FTC and @JusticeATR. Full dissent available here: https://www.ftc.gov/public-statements/2020/06/dissenting-statement-commissioner-rebecca-kelly-slaughter-re-ftc-doj
2/ My concerns were about both the process and the substance of the new Guidelines. The Guidelines changed a lot from the first draft based on invaluable public commentary; a 2nd round would have materially improved the final product.
3/ By releasing final Guidelines without a second round of commentary (or making up for the cancelled public hearing) @FTC & @JusticeATR short-circuited the thorough discussion that the public & this effort deserve. This was an unforced error.
4/ More importantly: I appreciate the revisions that address concerns I raised in my January statement ( https://go.usa.gov/xwtMa ). But today's Guideline's fail to fully reject the false notion that vertical mergers are almost always procompetitive.
5/ First & most obvious, the Overview states the benefits of vertical mergers, but is silent on the harms. The Guidelines also fail to identify merger characteristics that are most likely to be problematic & warrant enforcement.
6/ Next, I worry that despite some skepticism of the elimination of double marginalization (EDM), the Guidelines are too optimistic that EDM will be achieved and translate into benefits; they also omit theories of harm that may offset any benefit of EDM for consumers.
7/ Finally, the Guidelines leave out some very important topics, such as buy-side (monopsony) concerns, regulatory evasion, or how the agencies view remedies.
8/ In my dissent I also discuss forward-looking views on vertical merger enforcement: We must aggressively investigate & apply the Guidelines’ theories of harm, and we must be open to pursuing additional theories of harm as economic learning & investigatory experience evolves.
9/ We can't settle for inaction when evidence is complicated or cases are messy. To some #antitrust enforcers & observers, uncertainty means we should do less enforcement. To me, it means only that we need to double down on our efforts to protect #competition & #consumers
10/ Thank you to the many commenters for providing thoughtful & nuanced feedback. I look forward to continuing this discussion. And finally, I recommend reading @Chopraftc's dissent, which discusses additional important points: https://www.ftc.gov/system/files/documents/public_statements/1577503/vmgchopradissent.pdf
