The Department of Justice and the Federal Trade Commission are in the process of revisiting and updating their competitor collaboration guidelines, which were last issued in 2000. The update comes at a moment when the landscape of competitor collaboration has grown considerably more complex, shaped by algorithmic pricing tools, AI-driven platforms, and evolving information-sharing practices. We asked our panel what they most want to see the agencies address.
We gave our group of antitrust experts a simple Prompt:
The DOJ and FTC are revisiting and updating the collaboration guidelines. What issue(s) would you most like to see the agencies address with this update?
Their responses touched on the return of safe harbors, information sharing, algorithmic pricing, AI collaborations, and the guidelines' scope more broadly. Here are their full answers.
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
Several experts led with a call to restore safe harbor guidance, which they viewed as the most pressing gap left by prior agency actions.
“I would like to see safe harbors restored. It is very helpful in counseling clients to have bright lines to cite. While I disagree with the 30% share threshold in the merger guidelines, it has made counseling clients on risks easier.”
"Return of safety zones"
"The agencies should bring back the concept of safe harbor guidance on info sharing. The existing case law is not as clear as the statement on withdrawing that guidance made it seem. It has gotten murkier since. Assuming today's collaborations are more complex than when the old guidance was in effect, the agencies need not provide hard and fast rules (X number of competitors, Y measure of staleness of data shared), but there would be a lot of benefit to providing standards and help firms understand better when they risk liability."
One respondent pointed to Statement 6, specifically:
"Among the many topics fit for consideration, the agencies should address competitor participation in exchanges of price and cost information. In particular, the agencies should revive and update Statement 6 in the 1996 DOJ/FTC Statements of Enforcement Policy in Health Care, which addressed the issue of information exchanges, set out standards, and articulated a safe harbor. For nearly three decades many of us have relied on Statement 6 for comfort and guidance on the issue — not only in health care, but across a broad swath of industries, and even more so than relying on the 2000 Competitor Collaboration Guidelines' murkier treatment of the issue."
More broadly, several respondents flagged information sharing and algorithmic pricing as areas in urgent need of updated guidance:
"Information sharing, including the use of algorithms."
"The agencies should clarify their views on third party algorithmic pricing, especially when using non-public data from several rivals. The guidelines should also update references to the 2023 Merger Guidelines."
“How the agencies view data sharing, especially with common 3rd party vendors, should be clarified.”
