2.1: Identify Anticompetitive Mergers and Practices

Identify anticompetitive mergers and practices that cause the greatest consumer injury

Other Information:

The Hart-Scott-Rodino (HSR) Premerger Notification Act provides the FTC an effective starting point for identifying anticompetitive mergers before they are consummated. The FTC administers the HSR program both for itself and for the Department of Justice’s (DOJ) Antitrust Division, which shares authority to challenge anticompetitive mergers. Mergers reported to the FTC vary tremendously in their complexity and potential anticompetitive effect. In some cases, the agency can make a reasonable judgment within a few days of filing about whether a merger has the potential to be anticompetitive or procompetitive, simply by reviewing materials filed with the notification. In other cases, an investigation can take months and require a major commitment of resources. Far more transactions fall into the former category than the latter. The FTC also uses trade press articles, consumer and competitor complaints, and other means to identify potentially anticompetitive mergers that were not required to be reported under HSR, or that were not reported in violation of HSR. On the nonmerger side, there is no comparable statutorily mandated program to help identify anticompetitive business practices. The FTC must instead employ a variety of methods to identify potentially anticompetitive practices (for example, consumer and competitor complaints, referrals from other government agencies, and monitoring the trade press). Strategies: • Continue to make efficient use of the initial 30-day period after HSR filings (or 15 days for a cash tender offer) to determine whether a more detailed investigation is needed to assess whether a merger is likely to harm competition, and to avoid unnecessary extended investigations, including prompt inter-agency clearance and timely review. • Use trade press articles, consumer and competitor complaints, and other means to identify potentially anticompetitive mergers that were not required to be reported under HSR, or that were not reported in violation of HSR, and potentially anticompetitive nonmerger business practices. • When appropriate, issue requests for additional information under HSR to determine whether a merger is likely to be anticompetitive. • When appropriate, use compulsory process in merger and nonmerger investigations to obtain additional information needed to make an informed judgment about the anticompetitive potential of mergers and nonmerger practices. • Apply the merger process reforms to conduct investigations more efficiently, in order to enhance enforcement outcomes while minimizing burdens on business. • Employ integrated teams of lawyers, economists, and other professionals to conduct an economically sound, fact-based analysis of mergers and other potentially anticompetitive business practices. Retain outside experts and consultants in relevant fields of expertise, as needed, when enforcement outcomes would be enhanced by specialized supplementary resources. • Work with state or local officials, other federal agencies, or international agencies to maximize resources in identifying anticompetitive mergers and business practices, and to minimize, to the extent possible, burdens on enforcers and business and duplication of effort, and to avoid conflicting remedies. • Track and maintain the timeliness of investigations and merger review under the HSR program. • Refine the investigative and decisional tools used in both merger and nonmerger investigations through continuous learning. • Identify emerging trends and focus on potentially anticompetitive business practices or other issues that need to be addressed because of changes in the economy, technology, and the marketplace, drawing upon the results of hearings, task forces, agency studies and reports, and other means. • Continue to integrate e-government initiatives, such as electronic premerger filing, into mission activities. Annual and Five-Year Performance Measures: - Track number of enforcement actions for the total mission, and separately for the merger and nonmerger programs - Achieve positive outcome in at least 90% of matters in which HSR requests for additional information issue - Report annual number of second requests, reportable transactions for which premerger notifications were received, HSR investigations that resulted in enforcement action, transactions in which antitrust issues were resolved through voluntary abandonment or restructuring because of FTC concerns, and investigations closed because the evidence indicated that a competitive problem was unlikely - Achieve a positive outcome in at least 90% of annual significant nonmerger investigations - Track number of significant nonmerger investigations closed each year, with or without enforcement action

Indicator(s):

Indicator:1

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