Challenging the 2023 Draft Merger Guidelines: SIIA’s Key Concerns and Recommendations

In response to the Department of Justice (DOJ) and the Federal Trade Commission’s (FTC) request for comments on the Draft Merger Guidelines, the Software & Information Industry Association (SIIA) has highlighted several key concerns and observations:

1. Role of the Merger Guidelines: SIIA emphasizes the importance of merger guidelines in helping to explain merger law and provide guidance to the public. While the courts have traditionally considered these guidelines persuasive, it’s crucial for the agencies to exercise caution and not extend their authority beyond what is supported by the law.
2. 2023 Draft Merger Guidelines: SIIA acknowledges the Agencies’ goals with the 2023 Draft Guidelines, including reflecting the law as written, being transparent, and adapting to the modern economy. However, SIIA raises concerns about the guidelines’ effectiveness, suggesting that they may not align with the changes in antitrust law over the years.
3. General Comments on the 2023 Draft Merger Guidelines: SIIA highlights the need for the guidelines to reflect the significant shift in antitrust law toward focusing on consumer welfare and market power. They express concern that the Draft Guidelines exhibit an anti-merger bias, potentially leading to more challenges for mergers.
4. Comments on Specific Guidelines:
   • Guideline 4: SIIA believes that Guideline 4, which deals with potential entrant elimination, may create significant uncertainty and subject numerous mergers to increased scrutiny.
   • Guideline 6: SIIA argues that Guideline 6, which establishes a foreclosure share presumption, has dubious legal support and may capture mergers that historically raised no anticompetitive concerns.
   • Guideline 7: SIIA expresses concerns that Guideline 7’s evaluation of mergers involving dominant firms may lack clarity and alignment with the consumer welfare standard.
   • Guideline 9: SIIA recommends a more precise articulation of Guideline 9 and the introduction of a clear limiting principle regarding multiple small acquisitions.
   • Guideline 10: SIIA questions the authority for Guideline 10’s platform-based approach to assessing mergers and the use of the term “conflict of interest.”

SIIA appreciates the opportunity to provide comments and looks forward to further engagement with the Agencies on this crucial issue of antitrust guidelines and their potential impact on the software and digital information industries.