Randal Picker Examines the Draft Merger Guidelines as an Attempt to Educate the Public

Randy Picker: A Brief for the Public?

It seems a bit odd to ask, as I want to do here, what is it exactly that the new draft Merger Guidelines are trying to do? In my first-round post, I suggested that the Guidelines were intended to provide guidance to private parties considering a possible merger and then, perhaps, secondarily to offer a roadmap to courts in considering cases. I want to consider a third possible purpose, namely, influencing the public at large.

The draft Guidelines are substantively quite different from their predecessors, a point of perhaps universal agreement in first-round comments. But the Guidelines are also stylistically quite different than their predecessors, and that is seen most directly in the extensive citation of case law in the new Guidelines. As Dennis Carlton notes in his first-round piece, the 2010 Guidelines cite no cases, but that wasn’t a new feature of those Guidelines. The 1982 Merger Guidelines are seen by some in the symposium (see Eleanor Fox and Zephyr Teachout) as a distinctive break from the 1968 Guidelines, but on the question of case law citation, the 1968 Guidelines and the 1982 Guidelines were in perfect sync: neither cited a single case. What should we make of the dramatic stylistic change in the current draft Guidelines? Is style just style or is style substance? What is the relationship between form and function?

The Guidelines are a joint product of the Federal Trade Commission and the Antitrust Division of the Department of Justice. As is typically the case, both the chair of the FTC and the head of the Antitrust Division are from the same political party, as each is nominated by the president subject to Senate approval. (To be accurate, but perhaps a little technical, Lina Khan was nominated to be an FTC commissioner by the president, approved by the Senate, and subsequently appointed by the president as chair of the FTC, as that appointment didn’t require Senate approval.) But the FTC is a political agency in the sense that no more than three of the five commissioners can be from the same political party, and it usually operates on a 3-2 basis.

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