The two agencies said they are inviting the public and various antitrust stakeholders to comment until March 21 to help inform the process.
FTC Chair Lina Khan and Jonathan Kanter, the chief of the DOJ’s antitrust division, announced their review of the guidelines during a press conference on Tuesday. Both Khan and Kanter are big tech critics who have support from progressives.
The rewritten guidelines would almost assuredly have an impact on big tech companies. On Tuesday, Microsoft announced that it is acquiring the game studio Activision. The FTC has already reportedly begun looking at Amazon’s proposed acquisition of the film studio MGM, and its lawsuit against Facebook alleges that its acquisitions of Instagram and WhatsApp created a monopoly.
Meanwhile, the DOJ filed an antitrust lawsuit against Google in late 2020.
“Ever since issuing the first merger guidelines in 1968, the antitrust agencies have sought to ensure that these documents accurately set forth current enforcement policy and identify the techniques that we use to detect and assess unlawful mergers,” Khan said at the press conference.
Khan later added:
“For us to accurately detect and analyze potentially illegal transactions in the modern economy, ensuring that our merger guidelines reflect these new realties are critical. This inquiry comes against the backdrop of a broader reassessment of the effects of mergers across the U.S. economy. Evidence suggests that decades of mergers have been a key driver of consolidation across industries, with this latest merger wave threatening to concentrate our markets further … While the current merger boom has delivered massive fees for investment banks, evidence suggests that many Americans historically have lost out, with diminished opportunities, higher prices, lower wages, and lagging innovation.”
The two agencies outlined a number of areas that they are seeking input from the public on, including “unique characteristics of digital markets. Specifically, they said that digital markets “often have characteristics like zero-price products, multi-sided markets, and data aggregation that the current guidelines do not address in detail.”