Attorney General Tong Joins Comments Supporting DOJ and FTC’s Revised Merger Guidelines
Revised Merger Guidelines Will Help Combat the Concentration of Corporate Power and Protect Competition Across the Economy in Connecticut and the Nation(Hartford, CT) -- Attorney General William Tong has joined two separate multistate coalitions in submitting comments to the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) concerning their proposed revisions to the Merger Guidelines. The Merger Guidelines describe the standards that DOJ and FTC use when determining whether mergers and acquisitions violate the antitrust laws. This new revision marks a watershed in recent efforts at both the state and federal levels to strengthen antitrust enforcement. Responding to DOJ and FTC’s call for comments on their revisions, the States applaud the agencies’ new approach as a blueprint for strengthening state as well as federal merger enforcement, while suggesting ways to clarify this guidance, making it more effective in protecting competition and more useful for merging parties.
The Merger Guidelines serve not only as a guide to federal and state enforcers, companies considering mergers, and defense counsel, but have also been treated by the courts as persuasive guidance on merger law. DOJ and FTC’s new version of the Merger Guidelines reflects current economic thinking and the realities of the modern economy, including digital platforms and increased concern with competition among employers for workers. At the same time, the new version reaffirms the foundational principles of antitrust law—principles that have sometimes been neglected in recent decades, as merger enforcement has weakened. By going back to these principles and uniting them with modern economics, DOJ and FTC seek to simultaneously reinvigorate merger enforcement and vindicate Congress’ longstanding mandate that enforcers work to protect competition.
Like all the States, Connecticut has the authority to enforce federal merger law, alongside its authority under the Connecticut Antitrust Act to seek enforcement against unlawful mergers within the State. The States have strong track records in merger enforcement, whether by joining forces with our federal counterparts, acting independently, or acting as a group with other states. The multistate comments draw upon this track record, and the unique perspectives and interests of the States in protecting their residents and economies from anticompetitive harms.
The first set of comments, submitted by a coalition of 19 states, covers the revised Guidelines’ approach generally. These comments cover nearly all aspects of the revised Guidelines except labor markets. The States voice their support for DOJ and FTC’s classification of a broader spectrum of mergers as presumptively anticompetitive, their reaffirmation of precedent barring the balancing of harms across different markets, and their raising the standards of proof required for defenses raised by the merging parties—to name just three examples. The States also suggest clarifying certain passages in the Guidelines or providing more detailed discussions of the legal and evidentiary standards that FTC and DOJ are planning to apply, to facilitate better understanding by merging parties, enforcers, and the general public.
The second set of comments, submitted by a coalition of 15 states, supports DOJ and FTC’s decision to expressly address labor market issues in the Guidelines for the first time. Specifically, the States affirm FTC and DOJ’s statements that benefits in consumer markets will not offset a substantial lessening of competition in labor markets, and that certain labor practices may indicate that a company is dominant in labor markets.
Assistant Attorney General Rahul Darwar and Deputy Associate Attorney General Nicole Demers, Chief of the Antitrust Section, assisted the Attorney General in this matter.