On September 28, 2015, Federal Trade Commission (FTC) Commissioner Terrell McSweeny delivered remarks at the Global Antitrust Enforcement Symposium on the importance of the FTC using all tools at its disposal when evaluating potential mergers. Commissioner McSweeny focused on three merger evaluation methods in particular, including:

Commissioner McSweeny stated that using all available tools will allow the FTC to make the most informed decisions about whether to challenge a potential merger, to the benefit of consumers and competition. Commissioner McSweeny noted that the Horizontal Merger Guidelines (Guidelines) support using the full array of tools available, and that the FTC should continue to vigorously apply the Guidelines.

Commissioner McSweeny explained that empirical economic evidence often provides the basis for the FTC's merger decisions. Commissioner McSweeny noted that though econometric modeling and merger simulations are important tools for merger evaluation, reliable modeling data are often unavailable. Commissioner McSweeny stated that the FTC can glean important economic data from other quantitative tools, including:

Commissioner McSweeny also highlighted the importance of party documents, and noted that the FTC's December 2014 investigation into Verisk Analytics' proposed acquisition of EagleView Technology heavily relied on internal documents that showed Verisk was well-positioned to compete with EagleView (see What's Market, In the Matter of Verisk Analytics, Inc., Insurance Service Office, Inc. and EagleView Technology Corporation (litigated case)).

Commissioner McSweeny stated that the FTC should continue to place significance on the market concentration presumption, which presumes market power for mergers that significantly increase concentration and result in high market concentration. Commissioner McSweeny explained that the market concentration presumption is only the beginning of an extensive analysis, which includes many factors such as:

Commissioner McSweeny noted that despite some criticisms that the market concentration presumption generates false positives, data shows the US antitrust agencies rarely block procompetitive mergers.

Commissioner McSweeny stated that though unilateral effects analysis has taken center stage and that coordinated effects may be difficult to predict, the coordinated effects theory remains a valuable tool for antitrust enforcers. Commissioner McSweeny explained that because antitrust enforcers can do little to remedy conscious parallelism and other forms of coordination in an already concentrated market, they should use the coordinated effects theory to predict and potentially prevent tacit collusion. Commissioner McSweeny noted that the Guidelines allow agencies to challenge mergers without specific evidence of how potential coordination would manifest, and listed market factors that may link higher concentration with an increased risk of coordination, including:

For more on how the FTC and Department of Justice (DOJ) analyze potential mergers, see Practice Note, How Antitrust Agencies Analyze M&A.