The Federal Trade Commission (FTC) announced today that it is seeking public comments on a proposed study of the effectiveness of the FTC’s orders in merger cases where it ordered a divestiture or other remedy.

The proposed study would update a 1999 report issued by the FTC that evaluated consent orders issued between 1990 and 1994.  As a result of that study, the FTC implemented several changes to its divestiture process, including:  shortening the length of the divestiture period, requiring up-front buyers more often for on-going business concerns, and increasing the use of a monitor.

The new study would evaluate consent orders issued by the FTC between 2006 and 2012 across all industries.  The study would include consent orders that required a divestiture or some non-structural relief to remedy alleged anticompetitive effects.

In all, the FTC proposes to review 92 orders.  For the 15 orders involving hospitals, other health clinics, supermarkets, drug stores, and funeral homes, the FTC proposes to issue questionnaires to buyers of the divested assets.  Questions may include whether divestiture of only a subset of assets disadvantaged buyers in the particular market.

For the 24 orders involving the pharmaceutical industry, the FTC does not propose eliciting information directly from the parties.  The FTC would instead rely on compliance reports, monitors, and publicly available information.

For the other 53 orders covering a variety of industries, the FTC proposes interviews with buyers of divested assets, significant competitors in the market, and customers.  The FTC will seek voluntary interviews, though it may rely on compulsory process if necessary.  In addition, the FTC plans to use its Section 6(b) authority to obtain limited data from the buyers and their significant competitors in the market, including annual unit and dollar sales data for the products at issue in the consent order.

The FTC is currently accepting comments on:  (1) whether participation in the study is necessary, including whether the information will be practically useful; (2) the accuracy of its burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.

The draft proposal may be found here.