Statement of Commissioner Rebecca Kelly Slaughter on the FTC-DOJ Draft Vertical Merger Guidelines

I cannot join my colleagues in voting to release these proposed Vertical Merger Guidelines for public comment and instead abstain. I come to this decision with some reluctance because I believe the 1984 Non-Horizontal Guidelines should be rescinded and rewritten and because I recognize the utility of public comments. I do not object to the public having an opportunity to comment on these proposed Guidelines, however my substantive concerns about the proposal in its current form rise to a level where I am unable to provide an endorsement of it. I have a number of concerns with the proposed Guidelines. My two primary objections are: (1) the effective safe harbor for firms with less than 20 percent market share, and (2) the departure from Section 7 of the Clayton Act’s mandate to stop anticompetitive mergers in their incipiency. I am also concerned that certain issues lack sufficient emphasis.