GOP FTC Commissioner Says She’d Consider Undoing Merger Guidance

Republican Federal Trade Commissioner Melissa Holyoak said she’d consider repealing a Biden administration overhaul of guidelines used to determine whether a corporate acquisition breaks competition law.

Holyoak, who joined the commission after the 2023 policy was adopted, said her concerns stem in part from the guidance’s downplaying of the role economics plays in analyzing mergers and acquisitions.

She also claimed the guidelines cite “a lot of old case law,” which, while still precedential, offers an incomplete picture of the way courts have more recently looked at antitrust questions.

“I do have a lot of concerns about those guidelines,” Holyoak said Wednesday during a webinar hosted by George Mason University’s Mercatus Center. “I would strongly consider rescinding or revising them,” she added.

The remarks come less than a week before the presidential election, which if Donald Trump wins would give him power to pick a new chair among the slate of five Senate-confirmed commissioners. It is also common for the FTC chair to resign following a change in party control of the White House.

Holyoak is one of two Republicans on the commission. An aide to Holyoak didn’t immediately return a request for comment on whether she’d make revising the guidelines a priority in a GOP-led agency.

The FTC and the Justice Department in recent years have pushed to expand antitrust enforcement, which they claim under past administrations became too lax and allowed for harmful consolidation across the economy.

As part of that push, the agencies last December overhauled guidelines released in 2010 under the Obama administration. The guidelines were adopted by a 3-0 vote amid two Republican vacancies on the commission.

The new rules—which are nonbinding but designed to help courts in deal challenges—focus on 11 areas, including market concentration, serial acquisition strategies, and when mergers eliminate head-to-head competition.

On Oct. 24, a New York federal judge voiced support for parts of the new guidance when granting the FTC’s bid to block an $8.5 billion fashion sector tie-up of Tapestry Inc. and Capri Holdings Ltd.