The public comment period for the 2023 draft updates to the Merger Guidelines (“Draft Guidelines”) issued by the Federal Trade Commission and U.S. Department of Justice has closed, and it is possible to review the 1,600 submitted comments online.

While many of the comments are brief, others are more fulsome and detailed, including an exhaustive response from Professor Herbert Hovenkamp. Professor Hovenkamp’s comments provide a detailed assessment of each proposed guideline and argue that the Draft Guidelines fail to provide “balanced guidance,” since they only reflect on anti-competitive potential and provide little guidance as to what types of transactions would be approved. He also raises the important question of whether “the federal courts and perhaps the Supreme Court will defer to [the Draft Guidelines] as a legitimate interpretation of existing law rather than an attempt to make new law.”

However, perhaps the most valuable part of his commentary is the historical perspective of merger guidelines in general, as well as the Supreme Court’s interpretation of the antitrust laws. Professor Hovenkamp’s clear statement is that the “[Draft] Guidelines must be faithful to this Supreme Court record.”