Antitrust watchdogs aren't backing down


If you thought, as many on Wall Street apparently did, that a federal judge’s refusal to block the acquisition of Wild Oats by Whole Foods Markets cleared the way for an XM-Sirius merger, think again. The Federal Trade Commission has decided to continue the antitrust court fight and try to break up the health food grocery merger, even though it has already closed.

The FTC served notice last week that it intends to keep the case alive, opposing a motion by Whole Foods to have the matter dismissed by a federal appeals court because the merger has already closed. Instead, the FTC wants the case on a fast track, arguing that there is still time to break up what has been put together.

RBR/TVBR observation: Surely we weren’t the only ones to think it unlikely that the FTC and the Antitrust Division of the Department of Justice were just going to throw out their merger analysis guidelines because of an offbeat ruling by a single judge (8/30/07 RBR #170). As we predicted, the FTC is going to fight to have Judge Paul Friedman’s new thinking thrown out to restore decades of antitrust precedents. The DOJ, which uses the same antitrust guidelines as the FTC, will use those guidelines for its analysis of the XM-Sirius proposed merger, without paying any heed to what Judge Friedman thinks.