Experts discuss federal merger guidelines at conference honoring three NYU Law faculty

On September 29, a day-long conference at NYU Law both examined the state and direction of US merger law and enforcement and honored three preeminent NYU Law antitrust scholars: Harry First, Charles L. Denison Professor of Law Emeritus; Eleanor Fox ’61, Walter J. Derenberg Professor of Trade Regulation Emerita; and Professor Dan Rubinfeld.

Harry First

“We are gathering to celebrate the remarkable careers and also the enduring contributions of three truly exceptional members of our faculty,” said Dean Troy McKenzie ’00 in his opening remarks. “They have made NYU a place not just for exceptional competition law and scholarship, but also a place with global ambitions in the broader world of competition law and antitrust.” 

This year, the Department of Justice and Federal Trade Commission (FTC) released revisions to federal merger guidelines, which set the framework for the agencies’ antitrust review of pending business combinations. The first panel focused on today’s antitrust environment and what precipitated the most recent round of revisions to federal merger guidelines. 

Eleanor Fox

“United States antitrust law has gotten so conservative, it is out of step with the whole world,” said Fox. “The Biden administration, from the very start, set about to try to turn around the boat. And you don’t turn around a boat by incremental changes. It doesn’t work.” The 2023 guidelines, updated to crack down on anticompetitive behavior in an increasingly digital market, make a necessary “clean break” from past guidelines, ”but not a radical break,” Fox said. 

In the second panel, participants explored what makes the most recent iteration of federal merger guidelines unique, as well as the new tools they provide to enforce marketplace competition. Aviv Nevo, director of the Federal Trade Commission’s Bureau of Economics, noted that he attributes the incorporation of econometric methods into the draft merger guidelines to Rubinfeld’s scholarship. 

During the discussion, Rubinfeld expressed concern about new guidelines for vertical mergers, which combine companies that have a buyer-seller relationship. “What concerns me about portions of the guidelines, particularly the vertical [mergers] portion, is that it's forward-looking,” Rubinfeld said. “I read it as saying, ‘Here's what we hope the agencies can do successfully when they get to court.’ But it's less of a description of what the agencies are actually doing.... I think there’s just some rewriting that can be more powerful.” The guidelines also lay out strong arguments about why vertical deals can be problematic, he noted.

In the third discussion of the day, panelists talked about what’s next in American antitrust enforcement. First urged attendees to think of the new guidelines in the context of three intertwined purposes of the Biden administration’s enforcement policy: to halt further concentration of saturated markets, promote competition between firms, and mitigate the ever-growing power of Big Tech platforms. With a strong enough merger policy, he said, enforcers won’t have to confront monopolies. “We nip it in the bud, we stop it before then. We don’t have to deal with tacit collusion if we have less concentrated markets,” he said.

Like Fox, First concluded that the new guidelines are not intended to make minor adjustments to the direction of antitrust enforcement. “They are intended to turn the ship,” he said.

Posted on October 23, 2023