NAM to FTC, DOJ: Strengthen Antitrust Policy Now

The NAM is urging the administration not to reinstate onerous amendments to premerger notification rules and instead adopt new guidance for the Federal Trade Commission and Justice Department’s business collaboration guidelines.

Don’t revert to flawed rules: The previous administration finalized burdensome amendments to the Hart-Scott-Rodino Act’s premerger notification rules—and the current administration should not try to revive them, the NAM told the DOJ and FTC last week.

• The 2024 rules, which required merging parties to submit significantly more information and documentation to the agencies, “threatened to stifle job-creating growth in the manufacturing industry without any corresponding benefit to the agencies, merging parties or the public,” the NAM said.
• Earlier this year, after a legal challenge by business groups, a federal court judge blocked the 2024 rules, citing the NAM’s concerns from 2023 and concluding that the previous administration failed to show how the final rules’ potential benefits outweighed their significant cost burdens.
• In the wake of the judge’s February ruling, the NAM said agencies should not propose to reinstate the 2024 rules and “instead focus their attention on the limited number of transactions that actually pose a threat of competitive harm to American consumers.”

What to keep, what to add: Also in late May, the NAM urged the FTC and DOJ to maintain certain aspects of the agencies’ joint guidance on collaborations among competitors—and to add a few new provisions as well.

• “[M]anufacturers encourage the continuation of the safe harbors and enforcement safety zones that were part of the 2000 guidelines,” the NAM said.
• Given the lack of resources available to many early-stage biopharmaceutical and biotechnology firms, the agencies should also “provide updated guidance that allows collaboration through licensing agreements, incubators, joint ventures, strategic alliances and other agreements to accelerate the development of new treatments.”
• The FTC and DOJ should also consider new algorithmic-pricing guidance that “clearly distinguish[es] between permissible efficiency-enhancing uses of algorithmic pricing and conduct that raises antitrust concerns.”