A N T I T R U S T M O D E R N I Z A T I O ... - ncbfaa

R E P O R T A N D R E C O M M E N D A T I O N S 1111. The Federal Trade Commission and the Antitrust Division of the Department ofJustice should work toward increasing transparency through a variety of means.11a. The agencies should issue “closing statements,” when appropriate, toexplain the reasons for taking no enforcement action, in order to enhancepublic understanding of the agencies’ merger enforcement policy.11b. The agencies should increase transparency by periodically reportingstatistics on merger enforcement efforts, including such information aswas reported by the Federal Trade Commission in its 2004 HorizontalMerger Investigation Data, as well as determinative factors in decidingnot to challenge close transactions. These reports should emanate frommore frequent, periodic internal reviews of data relating to the mergerenforcement activity of the Federal Trade Commission and the AntitrustDivision of the Department of Justice. To facilitate and ensure the highquality of such reviews and reports, the Federal Trade Commission andthe Antitrust Division of the Department of Justice should undertakeefforts to coordinate and harmonize their internal collection andmaintenance of data.11c. The agencies should update the Merger Guidelines to explain moreextensively how they evaluate the potential impact of a mergeron innovation.11d. The agencies should update the Merger Guidelines to include anexplanation of how the agencies evaluate non-horizontal mergers.C. Exclusionary Conduct12. In general, standards for applying Section 2 of the Sherman Act’s broadproscription against anticompetitive conduct should be clear and predictablein application, administrable, and designed to minimize overdeterrence andunderdeterrence, both of which impair consumer welfare.