Today, in response to a Request for Information (RFI) by the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) on Merger Enforcement, the FAH submitted comments urging the FTC/DOJ to retain continuity in their Horizonal Merger Guidelines (Guidelines).  The comments highlight that consistency leads to better decision-making, reduced costs, and more efficient merger review processes, while significant revisions would risk eroding these efficiencies by introducing uncertainty.  The comments also emphasize that defining product and geographic markets should not be modified in any way as “defining product and geographic markets is vitally important to evaluating transactions, particularly in the hospital and health care system industry.” 

The comments also support targeted changes in the Guidelines to modernize enforcement of the antitrust laws regarding hospital and health system mergers.  Specifically, the comments urge that the Guidelines: (i) include guidance on how the DOJ/FTC will treat asymmetric diversion ratios between merging parties in the hospital and health system industry; (ii) appropriately account for quality-based and other pro-competitive efficiencies, particularly in hospital and health system mergers; and (iii) adopt broader standards to recognize “flailing” firms when they serve the public interest and the weakened nature of the flailing firm would have adverse impacts on the public.

You can read the entire letter here.