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American Economic Liberties Project

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The American Economic Liberties Project (“Economic Liberties”) is a nonprofit research and advocacy organization dedicated to understanding and addressing the problem of concentrated economic power in the United States. We submit this comment with Professor Robert H. Lande, the Venable Professor of Law Emeritus at the University of Baltimore School of Law, in response to the Draft Merger Guidelines proposed by the Department of Justice Antitrust Division and the Federal Trade Commission (together, “the Agencies”). Economic Liberties and Professor Lande write together in support of the Agencies’ efforts to improve the Merger Guidelines, last updated in 2010, to match the market realities of the highly concentrated and monopolized markets of today, to defend the legal and policy foundations of the Draft Merger Guidelines as proposed by the Agencies, and to suggest key revisions to strengthen them. Updating the Merger Guidelines now is more important than ever, as the scale of anticompetitive behavior, concentration, and monopoly in the American economy is at unprecedented levels. A majority of industries in the United States have become more concentrated since the 1990s, markups of consumer prices over the costs of production have increased dramatically since the 1980s, and American markets are now less competitive than other comparable markets abroad. We and many others have already recounted the many harms caused by this situation – higher prices, less investment, slower growth, less opportunity, weaker democratic institutions, and so on – and how lax enforcement of this country’s antitrust laws has contributed to these problems. Central to this decline in competition are changes in merger enforcement since the early 1980s. The Reagan Administration’s antitrust enforcers at the Department of Justice (the “DOJ”) revised the Merger Guidelines in 1982 with the specific aim of scaling back enforcement of the Clayton Act’s merger provisions. This coincided with a sharp decline in merger challenges by the Agencies, who at the time had an explicit understanding that the policies they were implementing ran contrary to original intent and meaning of Section 7. The Draft Merger Guidelines released last month will finally correct course and address the market realities of today.

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