FTC Moves to Revamp and Increase Merger Retrospective Reviews
On September 17, 2020, the Federal Trade Commission (“FTC”) announced efforts to revamp and increase its retrospective research efforts. This retrospective analysis, which has been a continuing project for the FTC, “seeks to determine, after the fact, whether a merger has affected competition in one or more of the markets impacted by the merger.” Among other things, the FTC seeks to use this increased effort to “evaluat[e] the tools which may be used to screen and assess the competitive effects of mergers, such as the ‘price pressure’ measures that have been proposed for evaluation of horizontal mergers, vertical mergers, and full-fledged merger simulation . . . .”
According to FTC Chairman Joseph Simmons, “[t]he goal of this initiative is to encourage economists both inside and outside the agency to carry out more retrospective studies to test our analytical tools and strengthen our enforcement efforts.” However, based on the fact that the FTC has under retrospective review two hospital mergers that received state regulatory approval under Certificate of Public Advantage programs, another unstated but apparent goal of this initiative is to obtain information for purposes of persuading state legislatures to abandon such state regulatory programs.