Federal Trade Commission

The 1984 Non-Horizontal Merger Guidelines should be rescinded, as they represent an antiquated, narrow, and overly permissive mode of thinking that is not reflective of today’s economy or the current approach to enforcement. The US economy is far different than it was forty years ago. Increasing concentration, declining new firm formation, and other market trends necessitate a modernization of vertical merger review. The draft guidelines miss the mark.

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 I come to this decision with some reluctance because I believe the 1984 Non-Horizontal Guidelines should be rescinded and rewritten and because I recognize the utility of public comments.

The Department of Justice withdrew the 1984 DOJ Non-Horizontal Merger Guidelines, and, together with the Federal Trade Commission, released new draft 2020 Vertical Merger Guidelines and seek public comment. The draft guidelines, open to comment for 30 days, describe how the federal antitrust agencies review vertical mergers to evaluate whether the mergers violate antitrust law.

The Federal Trade Commission has granted final approval to a settlement with the former CEO of Cambridge Analytica, LLC and an app developer who worked with the company to resolve allegations they used deceptive tactics to collect personal information from tens of millions of Facebook users for voter profiling and targeting. As part of the settlement, app developer Aleksandr Kogan and Cambridge Analytica CEO Alexander Nix are prohibited from making false or deceptive statements regarding the extent to which they collect, use, share, or sell personal information, as well as the purposes for