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The DOJ and FTC Institutionalize Failure

July 19th, 2023

First impressions of the DOJ and FTC merger guidelines announced today:

The Neo-Brandesian’s are nothing if not persistent. You often hear football coaches say “we are sticking to our game plan” even as their losses mount. That’s what the DOJ and FTC’s new guidelines and justifying statements sound like today.

Both agencies have racked up a series of losses in applying their radical reforms to antitrust since taking office in 2021. With their season more than half over they are facing a losing season. The new guidelines don’t look like they have internalized that record or made any attempt at even tinkering with their game plan.

The funny thing DOJ and FTC are making a big deal out of citing a lot of precedent but have the temerity to say they are trying to tell judges what the law is.

The guides are supposed to help companies understand how the agencies interpret the law. But the new guidelines are fairly vague leaving room for DOJ and FTC to do what they want. The guidelines are meant to help companies comply with existing law not to move the goal posts to try to change the law.

Finally, the new guidelines still leave the agencies at the mercy of the courts which so far have shown little interest in diverting from their established precedent.

If I might take the football metaphor one step further, I think only firing the head coach will bring a return to evidence based antitrust enforcement and an end to politics.