Deputy Assistant Attorney General John Elias Delivers Remarks at UN Trade and Development’s Intergovernmental Group of Experts on Competition Law and Policy

Remarks as Prepared for Delivery

Good morning. It is an honor to speak to the 22nd session of the Intergovernmental Group of Experts on Competition Law and Policy. International engagement helps drive enforcement forward. While our separate nations enforce their own laws independently, we must react to many of the same trends in technology and the structures of economies. Dialogues like this help us do our work at home more effectively.

One area where we have seen real advances in thinking in the United States is merger enforcement. We undertook a revision of our Merger Guidelines that brought all stakeholders into the conversation. Academics, practitioners, experts, international enforcers and the lay public all took part in a robust conversation that was incredibly thoughtful and substantive. I’m grateful for the chance to talk today about merger enforcement and the 2023 Merger Guidelines issued jointly by the U.S. Justice Department and the Federal Trade Commission (FTC).

I first joined the U.S. Justice Department in 2006, after graduating from law school, and one of my early roles was to investigate mergers. When I arrived, a more senior attorney handed me a document titled the “1997 Horizontal Merger Guidelines” and told me to read and understand it in order to do my job.[1] This is just one example of how the Guidelines are a resource for the Agencies themselves, as well as a tool to provide transparency for the public.

A lot has changed since 2006. The Agencies have updated the Merger Guidelines a few times since then, most recently with the 2023 Merger Guidelines.[2] The 2023 revision was the product of a more ambitious public review process than we have ever undertaken. The Agencies conducted listening sessions and put out two separate calls for public comment, in response to which we received thousands of comments. All in all, the process involved two years and input from thousands of stakeholders.

I’d like to describe three important considerations we focused on in developing the 2023 Merger Guidelines: (1) being more comprehensive in describing the theories of harm pursued in merger review; (2) applying burden shifting to ensure we appropriately consider rebuttal evidence pertinent to whatever evidence gives us competitive concern and (3) enabling an inquiry that reflects market realities.

First, let me be clear what the 2023 Merger Guidelines are. They are the Justice Department and FTC's explanation to the public of what the Agencies look for when they review mergers. To do that job well, they need to be comprehensive in coverage. Previously, the Agencies had two separate documents covering vertical and horizontal mergers distinctly. But if the purpose of the Guidelines is to help inform the readers how merger review is undertaken, it is less helpful to ask them to know the difference before deciding which document to read. So, the 2023 Merger Guidelines combine and replace both our vertical Guidelines and our horizontal Guidelines.

Moreover, the 2023 Guidelines add theories that were simply absent from our prior Guidelines. Before the release of the 2023 Merger Guidelines, both Agencies had brought cases involving theories of illegality that prior Guidelines had not explicitly considered or had only briefly discussed. The Agencies challenged mergers under entrenchment theories of harm, as we saw in the department’s case against Visa/Plaid.[3] We also pursued potential competition theories of harm, as we saw in the FTC’s challenge of Meta/Within.[4] In addition, we pursued labor market theories of harm, on which the department relied when we successfully blocked Penguin Random House’s attempted acquisition of Simon & Schuster.[5] Lacking explicit descriptions of these theories of harm, the old Guidelines created blind spots for problematic mergers. It is a disservice to the public to offer them a guidance document that leaves out potentially important considerations. The 2023 Merger Guidelines seek to fill those gaps while explaining to the public, including the business community, the fact patterns the Agencies look for when they review mergers.

Second, the Agencies structured the 2023 Merger Guidelines to follow the burden-shifting framework that courts in the United States rely on — that is, the Agencies have the burden to establish a prima facie case that a merger may substantially harm competition.[6] Then, the parties can rebut the Agencies’ allegations by showing the merger does not threaten to substantially lessen competition.

The 2023 Merger Guidelines follow that very structure.[7] Section 1 provides an overview of principles that guide the document. Section 2 includes eleven guidelines with horizontal and vertical theories of harm in addition to other theories and applications. Specifically, Guidelines 1-6 represent the prima facie frameworks under which a merger can violate the law. Guidelines 7-11 apply these prima facie frameworks in specific settings, such as in mergers involving platforms or buyer markets. The Agencies may apply one or more of these modular guidelines to identify a prima facie theory of harm with the merger. Section 3 details rebuttal evidence, such as the failing firm defense, entry and repositioning and efficiencies that benefit competition, that merging parties may use to show there is no substantial lessening of competition threatened by the merger. And Section 4 contains evidentiary, analytical and economic tools that cover specialized topics such as the key sources of evidence that the Agencies use in merger analysis, ways that the Agencies evaluate competition among firms, market definition, and calculating market shares.

Third, the 2023 Merger Guidelines have been updated to ensure our analysis can flexibly reflect the market realities of a changing economy. The Agencies use analytical, economic and evidentiary tools to explicitly connect their analyses to effects on competition. By incorporating state-of-the-art economics, the 2023 Merger Guidelines have made important updates.

For example, Guideline 9 accounts for the complexity of analyzing platform mergers.[8] As detailed in economic and legal scholarship, mergers involving platforms are more likely to involve unique characteristics, including scale and network effects, gatekeeping, leveraging, consumer lock-in, market tipping and data-driven advantages. The Guidelines reflect the Agencies’ growing experience with platforms, which pose competitive considerations distinct from the traditional “horizontal” and “vertical” market structures of the 20th century economy.

Another example, Guideline 10, explicitly recognizes harm to competition in labor markets.[9] While prior versions of the Guidelines acknowledged mergers involving powerful buyers may violate the antitrust laws just like mergers involving powerful sellers, the 2023 Merger Guidelines elaborate on this point and are the first to explicitly acknowledge the special case of labor markets. Guideline 10 explains that the Agencies will challenge a merger based on labor market impacts alone and details unique competitive considerations applicable to labor markets.

I’d like to highlight two other important things about the application of the 2023 Merger Guidelines to our modern economy.

First, they offer a flexible approach to account for the many different dimensions of competition. While price competition remains important, changes in the modern economy have underscored that the Agencies also consider quality and innovation as key facets of competition. Take for example the case of a zero-price market seen in internet applications. Consumers in that market care about the price, but they also care deeply about quality (including privacy) and innovation. To recognize the realities of our present-day market, where possible, the Guidelines offer analytical tools and frameworks to account for all dimensions of competition, such as broadening the Small but Significant and Non-transitory Increase in Price (SSNIP) concept used for market definition since the 1982 Merger Guidelines to now explicitly incorporate non-price changes in terms (Small but Significant and Non-transitory Increase in Price or Other Worsening of Terms, or SSNIPT).[10]

Second, and relatedly, the Guidelines recognize that competition is not only a process of rivalry across many dimensions, but also a dynamic process. We can’t be effective competition enforcers if we protect competition only at a single point in time, ignoring the long-term incentives that also drive business decisions and matter to our economies. So, the Guidelines enable consideration of how durable market power can create incentives toward exclusionary conduct that a static analysis sometimes might not expect.

The 2023 Merger Guidelines are not alone in recognizing the many dimensions on which competition plays out and the dynamic process it can involve. Just this spring at the International Competition Network Annual Meeting, the new recommended practices on non-horizontal mergers incorporated a definition of competition that matches in many respects the approach in the Merger Guidelines. It’s an example of international convergence driven by advances in economics and enforcement experience.

In closing, I want to emphasize that the new Guidelines are meant for the public. They are written in a way that is intended to be accessible and transparent. Transparency is critical to deterring anticompetitive mergers and establishing trust with the public. These Guidelines are the sum of experiences from staff at the Agencies as well as input from thousands of consumers, business owners, employers, employees, everyday Americans and international experts who shared their thoughts. We are grateful for public participation in the process and believe that these 2023 Merger Guidelines are better equipped to address anticompetitive mergers in today’s economy.

Thank you.