The Federal Trade Commission and the U.S. Department of Justice issued a “Request for Information on Merger Enforcement” on January 18, 2022 (the “Request”) asking for input from all sources and interested parties regarding a myriad of issues as the government plans on drafting updated “merger” guidelines. The Request specifically is seeking input with respect to both the 2010 Horizontal Guidelines and the 2020 Vertical Guidelines (which were withdrawn) issued by the agencies. The public comment period is 60 days.
The agencies have stated that they believe that recent enforcement has been too permissive, especially in the area of digital markets, and specifically asks for comment as to whether this segment should be reviewed differently than other markets. While the Request does not specifically discuss the health care markets, this provides an opportunity for the health care sector to provide comments to the FTC and DOJ.
The questions on which the agencies are seeking input, as set forth in the 10-page Request, include:
- Should the guidelines’ traditional distinctions between horizontal and vertical mergers be revisited in light of recent economic trends in the modern economy?
- What aspects of modern market realities may be lost by focusing on these relationships categorically? Should the guidelines address all mergers in a common framework that covers all market relationships relevant to competition? If so, how?
- How should the guidelines assess whether a lessening of competition is “substantial”?
- What factors should be considered in assessing the likelihood and, separately, the magnitude of harms resulting from a merger?
- Has the guidelines’ framework been interpreted unduly narrowly as focusing primarily on the predicted price outcome of a merger? Are there non-price effects that are not adequately analyzed by analogy to price effects, and how should the guidelines address such effects? What evidence should the guidelines consider in evaluating these effects?
- Should evidence of substantial competition between the merging parties be sufficient to establish the loss of competition due to merger?
- What specific metrics or observable features of a transaction, firm, or market should, alone or in combination, trigger a presumption that a horizontal transaction is anticompetitive?
- Is it necessary to precisely define the market in every case? In what cases is it more or less important? Does the importance of market definition vary between horizontal and non-horizontal mergers? What conclusions about the existence of a relevant market can be drawn from the identification of probable harm?
- Are there tools used to define markets that are or should be unique to merger analysis? If so, which ones and why?
In the merger and acquisition arena, the health care industry often attempts to distinguish itself as it confronts the FTC and DOJ with its antitrust analysis. The Request issued by the agencies provides a platform for health care providers to preemptively make their case.