Following the release of memoranda by the acting leadership of the Department of Justice (DOJ) and Federal Trade Commission (FTC), which state that the 2023 Merger Guidelines remain agency policy, the Information Technology and Innovation Foundation (ITIF) has issued a statement. Joseph V. Coniglio, ITIF's director of antitrust and innovation, expressed concern over this decision.

"It is very unfortunate that the new Trump administration is doubling down on the highly flawed 2023 Merger Guidelines," Coniglio stated. He criticized these guidelines as an attempt to revive a merger policy that he believes negatively impacts innovation, competition, and consumers.

Coniglio argued that maintaining stability for its own sake is not prudent in light of what he describes as mismanagement during the Biden administration. "Continuing these problematic policies will only exacerbate the growing crisis in agency credibility," he added.

The ITIF asserts that guidelines should reflect existing law and sensible policy but claims that the 2023 Merger Guidelines do neither. Coniglio highlighted concerns about lower HHI thresholds lacking a basis in case law or sound economics, potentially hindering procompetitive transactions.

"Today’s actions are not justified by the uncertainty created by the 2023 Merger Guidelines," Coniglio said, emphasizing that reliance on judicial precedent would better serve both antitrust professionals and businesses.

With new DOJ assistant attorney general and FTC chairman yet to be confirmed, ITIF views these memoranda as a signal for U.S. senators who seek effective antitrust policies promoting innovation, consumer benefits, and competitiveness against China.

The foundation reaffirmed its commitment to advocating for pro-innovation competition policies without partisan bias. It pledged to continue critiquing detrimental antitrust measures under both Trump and Biden administrations.

Contact: Sydney Mack: [email protected]