Revising the Merger Guidelines: A recipe for success
Plus, our thoughts on private delegation and Elon Musk's content moderation ideas.
From all of us at TechFreedom, we hope you’ve had a wonderful Easter, Passover, Ramadan, Emancipation Day, or just mid-April! In spite of the less-than-thrilling weather conditions you might have experienced this week if you’re on the east coast, spring has truly sprung. And what better way to celebrate the season than to bake something delicious?
One thing I cooked up recently was a tin of mint fudge, which is perfect whether you’re avoiding bread and baked goods for Passover (like me) or as a general rule (like Berin). If you’re aiming to whip something up by the end of the month, why not take advantage of what’s in season and make a rhubarb pie? For something savory, you could put together an artichoke galette. The world is your oyster (which will also be going out of season soon!).
Antitrust. Yesterday, Bilal submitted comments to the FTC and DOJ in response to the agencies’ Request for Information on Merger Enforcement. Our comments identify six key principles that we believe the agencies should adhere to so as to maintain the persuasiveness and influence of the Merger Guidelines. The most important is that the revisions should be incremental, and should reflect the agencies’ experience. Previous Merger Guidelines have succeeded because they provided a flexible and lasting framework that reflects the antitrust community’s consensus on how to calculate the competitive significance of mergers. Since the courts have no obligation to refer to these non-binding Merger Guidelines, their influence is a function of their persuasiveness. You can share our comments on Twitter here, and you can also read our coalition letter last month recommending procedural steps for the revision process here.
Private Delegation. On Monday, we filed an amicus brief urging the Fifth Circuit to hold that the FCC’s “private delegation” of its authority to a non-governmental entity violates the Constitution. Congress delegated to the FCC the task of running the Universal Service Fund, a program that pays for advanced telecommunications and broadband services for underserved institutions, remote areas, and the poor. The FCC in turn “subdelegated” most of its authority to run the USF to a private entity, the Universal Service Administration Company. As we argue in our brief, this “private delegation” of power is the Founders’ fear of unaccountable government come to life. Brief here; press release here. Broadband Breakfast also covered our brief here.
The same day we filed the brief, Corbin discussed private delegation in an essay published at Law & Liberty. As Corbin explains, the Founders would never have let lawmaking power fall into private hands. They “wanted what Madison called ‘proper guardians of the public weal,’ and not ‘advocates and parties to the causes which they determine.’” Private delegation runs counter to the conception of representative government they enshrined in the Constitution. Essay here; tweet here.
Content Moderation. On Easter Sunday, Corbin had a Twitter/Elon Musk take published in City Journal. Musk seems to think that a social media platform should allow all speech “within the bounds of the law.” But as Corbin notes at the outset of his piece, “a social media product that came to be dominated by anti-Semitism, porn, coordinated abuse, virulent racial animus, and bot-generated foreign propaganda—all forms of speech ‘within the bounds of the law’—would soon have little value.” Musk does not seem to have thought things through.
Follow us on Twitter! Berin @BerinSzoka; Ari @AriCohn; Corbin @CorbinKBarthold; Bilal @BilalKSayyed; Andy @AndyJungTech; Jason @JasonKuznicki; me (Rachel) @MillionthRachel.