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Today, the Federal Trade Commission announced a consent decree in the Staples-Essendant merger. Commissioners Slaughter and Chopra dissented, arguing the consent decree would be insufficient to address their competitive concerns with the merger. In her dissent, Commissioner Slaughter proposed that in this case, as well as in other “close case” vertical mergers going forward, the Commission should set up a system of “planned retrospective investigations” including the option to “challenge the consummated merger if necessary.”
The following can be attributed to Charlotte Slaiman, Policy Counsel at Public Knowledge:
“The economic tests we have to measure the changes in power and incentives as a result of vertical mergers are less frequently tested and used than the Horizontal Merger Guidelines. This can make bringing a lawsuit to block a vertical merger riskier, even when evidence suggests anticompetitive impacts are likely.
“The case Slaughter describes, where a specific vertical merger ‘raises meaningful competitive concerns, but where we have not identified sufficient evidence to justify a court challenge,’ is an important category of cases that deserve scrutiny. The FTC, as an expert agency, can fill this gap and help educate the courts about the harms from vertical mergers.
“The solution Commissioner Slaughter proposes, announcing the intention now to follow up and evaluate the impact of the merger after the fact, will add to our economic learning and improve antitrust enforcement on vertical mergers in the future. This solution also focuses attention on the FTC’s responsibility to undo mergers that turn out to be harmful to competition.”