Ahead of tomorrow’s Senate Judiciary Antitrust Subcommittee hearing, a group of former federal antitrust enforcers sent an open letter to the U.S. Justice Department (DOJ) and the full Judiciary Committee urging a consumer-welfare-focused review of the proposed Netflix–Warner Bros. Discovery merger. The letter rejects the progressive analytical framework advanced during the prior administration and calls for a return to established antitrust principles.
The authors press DOJ to evaluate the transaction using proven legal and economic criteria, not the 2023 Merger Guidelines. Adopted on a straight partisan vote, those guidelines minimize or dismiss merger efficiencies, lean on outdated structural presumptions, and advance theories of harm untethered from traditional indicia of competition. Reliance on those guidelines would effectively give the prior administration an ongoing role in reviewing this deal.
The letter also emphasizes that precedent and empirical evidence show most mergers—particularly vertical mergers—do not threaten competition and often enhance it. While the Netflix–Warner Bros. transaction includes both vertical and horizontal elements, its core is vertical integration. By pairing world-class content creation with global distribution, the deal could strengthen competition by enabling a newly integrated firm to compete more effectively in a fast-moving market.
If DOJ nonetheless identifies competitive concerns, the letter urges the department to pursue targeted remedies rather than seek to block the merger outright. Across both DOJ and the Federal Trade Commission (FTC), the Trump administration has routinely negotiated reasonable remedies that allowed otherwise pro-competitive transactions to proceed.
Most importantly, the letter cautions DOJ against speculative theories of harm based on foreclosure, potential competition, or rigid structural presumptions. Those theories featured prominently in the prior administration’s enforcement agenda. Antitrust review should intervene only where evidence shows likely consumer harm, and even then, agencies should first seek modifications that cure that harm. Merger review should not become a tool to punish firms or erect bureaucratic barriers to economic freedom, progress, and growth—especially when a transaction could strengthen the global position of U.S. companies in strategically important markets.
The prior administration repeatedly relied on speculative theories—such as those based on notions of foreclosure, potential competition, or structural presumptions—to challenge mergers with substantial vertical components. The list includes Nvidia-Arm, Lockheed-Aerojet, Meta-Within, Illumina-Grail, Amazon-iRobot, and Microsoft-Activision Blizzard. Each transaction held the potential to enhance competition and bolster U.S. firms in critical sectors such as chip design, missile propulsion, robotics, immersive digital platforms, cancer diagnostics, and gaming. That record reflects an enforcement approach that often subordinated consumer welfare to ideological commitments, at the expense of U.S. competitiveness.
The letter closes by stressing that these principles apply to all merger reviews. As they have for decades, antitrust agencies should assess transactions based on likely effects on consumers—not on the prior administration’s progressive analytical framework.
