The Federal Trade Commission and the Justice Department’s Antitrust Division released for public comment a draft of the agencies’ revised Merger Guidelines on July 19, 2023. Law firms of all sizes have published obligatory client alerts and other assessments, and interest groups have flooded social media and the blogosphere either lavishing praise on the document or criticizing it for turning back the clock on decades of legal and economic advancements.

A member of WLF’s Legal Policy Advisory Board recently took a different approach in a piece for Law360. In “Merger Guidelines Should Provide for Competition Trustees,” former Court of Federal Claims Judge Susan G. Braden proposes that the Guidelines offer an alternative to “the blunt implementation of an injunction blocking a merger.” She suggests a mutually agreeable consent-decree approach that would allow the merger to proceed under the supervision of a court-appointed and supervised competition trustee. Judge Braden continues:

“The competition trustee would be compensated by the parties proposing to merge and responsible for preparing at least semiannual reports for the court, the parties the public.

Each report would address at least the 13 factors listed in the proposed merger guidelines and advise the court, if judicial intervention was deemed warranted at any time. In addition, the court could also convene a public compliance hearing to address the findings in each report and provide the competition trustee with an opportunity to answer questions raised by the court or parties.

The competition trustee could be a retired federal judge with substantial expertise with antitrust law, perhaps with prior service in one of the enforcement agencies, or a retired former DOJ attorney general or FTC commissioner, with no pecuniary or other potential conflicts of interest.”

Judge Braden’s article can be read via FedArb here.