Groups Oppose Change to Antitrust Policies
By Dan Markham
on Nov 28, 2023
A number of trade groups, including the Metals Service Center Institute and the National Association of Manufacturers, have aligned to ask Congress to halt changes to U.S. antitrust policy. The changes proposed by the Federal Trade Commission and the Department of Justice would result in a “large-scale reorganization” of the initial phase of the Agencies’ merger and acquisition approval process.
According to the trade groups, the changes “reject the Hart-Scott-Rodino Act standards relied upon by businesses for more than 45 years and will dramatically delay and discourage transactions critical to growth, job creation and innovation for businesses of all sizes," the letter read.
“The FTC’s and DOJ’s new regime would subject thousands of businesses each year to costly and unnecessary new burdens. Smaller and middle-market businesses will be hit the hardest. Economists project the new regime will equate to over $2 billion in annual costs on these businesses with no identifiable benefit,” the groups argued.
Under current law, the initial phase of the FTC and DOJ review process recognizes that most transactions do not pose anti-competitive concerns. Companies file a notification form with enough information for the FTC and DOJ to determine if an anti-competitive issue may exist. If the agencies identify potential threats to competition during their initial review, companies are then required to go through a more thorough second review process.
In 2021, the FTC and DOJ only required 65 of the 3,520 filings it received to go to the second level of review – roughly 2 percent of all transactions.
The proposal estimates that the time to prepare an average filing will quadruple. For more complex transactions, which account for nearly half of all merger filings, companies will face a seven-fold increase in filing times. This transformation will delay transactions by weeks or months.
“This burdensome approach is not calibrated for the minimal anti-competitive risk posed by the vast majority of the thousands of transactions to which it will apply," the groups claimed.