Attorney General Bonta Co-Leads Multistate Coalition in Expressing Support for DOJ and FTC’s Revised Merger Guidelines

Revised merger guidelines will help to protect competition in California and the nation 

OAKLAND — California Attorney General Rob Bonta today announced co-leading a coalition of 19 attorneys general in submitting a comment letter to the United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) regarding the agencies’ proposed revisions to the Merger Guidelines. Merger Guidelines describe the standards used by DOJ and FTC to determine whether mergers and acquisitions comply with federal antitrust law. In addition to serving as a guide to federal and state enforcers, companies considering mergers, and defense counsel, the Merger Guidelines have been treated by courts as persuasive guidance on merger law. In the comment letter, the attorneys general commend DOJ and FTC for seeking to strengthen federal and state merger enforcement as well as urge the agencies to go further to protect competition in the marketplace. 

“Time and again, the Biden-Harris Administration has demonstrated its commitment to protecting competition in the marketplace and lowering costs for consumers. The revised Merger Guidelines are a win for consumers, workers, and innovation,” said Attorney General Bonta. “Our diverse economy has changed since the Merger Guidelines were last updated. I applaud this effort to right the ship, away from the increasing concentration of corporate power in increasingly fewer hands and toward a competitive and more equitable economy.”

The comment letter addresses the revised Merger Guidelines’ approach generally — with the exception of their approach to labor markets. Among other things, the attorneys general express their support for:

• DOJ’s and FTC’s classification of a broader spectrum of mergers as presumptively anticompetitive.
• DOJ’s and FTC’s reaffirmation of precedent barring the balancing of harms across different markets.
• DOJ’s and FTC’s raising the standards of proof required for defenses raised by the merging parties.

To facilitate better understanding by the public, the attorneys general suggest clarifying certain passages in the Merger Guidelines or providing more detailed discussions of the legal and evidentiary standards that FTC and DOJ are planning to apply. 

In a separate comment letter, Attorney General Bonta is joining a coalition of 15 attorneys general in supporting DOJ and FTC’s historic decision to address labor market issues in the Merger Guidelines. For the first time, the Merger Guidelines expressly recognize that benefits to consumers do not offset harm to workers in an otherwise unlawful merger. The revised Merger Guidelines also call for an evaluation of competition in the labor market that accounts for working conditions and the individualized needs of workers in the market in question.

Joining Attorney General Bonta in submitting the first comment letter are the attorneys general of Arizona, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, the United States Virgin Islands, Washington, and Wisconsin. 

In submitting the second comment letter, Attorney General Bonta joins the attorneys general of Arizona, Connecticut, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, the United States Virgin Islands, Washington, and Wisconsin.

A copy of the first comment letter can be found here, and a copy of the second comment letter can be found here.