The FTC Made Its Bed, Now It Must Lie In It

How the Biden FTC lost its vertical merger challenge against Tempur Sealy / Mattress Firm and the secret economic sauce behind the FTC's defeat

Last week we Graded the Biden Administration’s Merger Enforcement Regime and gave them a B-. The grade was based upon wins and losses in court, settlements out of court, and overall activity level measured across administrations for the past 40 or so years. The Biden Administration came in with big promises. Other administrations had simply ignored the antitrust laws or did not have the political will to block the deals they would. Prior administrations – both Republican and Democrat – were asleep behind the wheel and feckless. But the data speak for themselves. The Biden Admin merger regime was mostly just like others. Certainly it was no more active.

Taking a step back, the Biden-Khan-Kanter merger regime really had only three notable features: (1) it lost more often in federal court; (2) it generated far fewer consent decrees with merging parties than any administration of the modern era; and (3) it consistently flouted the rule of law and abused the merger process (ending early termination, lawless settlements, delays in process, etc.). Given the disrespectful and dismissive rhetoric the Khan and Kanter regime used to describe prior admins – some of you found the B- too generous for a regime that obviously failed to live up to the expectations it set for itself. Others found the grade too harsh – contending I failed to see the benefits of the various non-enforcement accomplishments of the regime (changes in policy, new Merger Guidelines, etc.). Fair enough.

In today’s Competition on the Merits, we are going to stick with mergers. Vertical mergers, specifically. The Khan FTC’s last gasp was a federal court loss in FTC v. Tempur Sealy/ Mattress Firm. The FTC challenged the proposed vertical acquisition between Tempur Sealy (a mattress manufacturer) and Mattress Firm, a mattress retailer. Judge Eskridge’s decision rejecting the FTC’s challenge came down just two weeks ago and it is worth discussing for a lot of reasons. The decision is here.

And before we jump in – you know the drill: subscribe, upgrade to paid, send to a friend!

Now if you read the various Big Law firm client alerts and the like about the decision the takeaways are fairly predictable and certainly true:

• It is hard for the government to win vertical merger challenges in litigation;

• It is really hard for the government to win a merger challenge and lose on market definition – as it did in Tempur Sealy because its proposed “premium mattresses above $2,000” market definition did not fit market realities – and win a case;

• Proposed remedies, divestitures, and behavioral commitments can be an important part of defending a proposed transaction.

Fine. All true! Go read those client alerts. In fact, here are a few good ones (here and here). But I am writing about FTC v. Tempur Sealy / Mattress Firm today because there is a lot more going on in Judge Eskridge’s opinion. Litigated vertical merger cases are rare! We have had more of late – Illumina/ Grail, Microsoft/ Activision, AT&T/ Time Warner – but the body of case law is relatively sparse. Each decision matters more than in the horizontal merger context and I think there are some important features of Judge Eskridge’s opinion – which will not be appealed – that are worth thinking about and discussing. So let’s do that today. And I’ll close out with some thoughts about what is next in vertical mergers during the Trump Administration.

Setting the Stage / Making the Bed

I’ll be quick here. Tempur Sealy’s proposed $5 billion acquisition of Mattress Firm was challenged by the FTC back in July 2024. The FTC voted unanimously – including Republican Commissioners Holyoak and Ferguson – to challenge the deal on the grounds that there was “reason to believe” the transaction violated the Clayton Act.

The transaction itself was a relatively straightforward vertical transaction. Tempur Sealy is the world’s largest mattress supplier and manufacturer. It agreed to acquire Mattress Firm, the nation’s largest mattress retailer. Tempur Sealy sells its mattresses through not only Mattress Firm, but through other retailers, direct to consumers online, and through its own vertically integrated retail stores.

The FTC’s theory of harm was also a pretty straightforward foreclosure theory. The FTC contended that the acquisition would allow Tempur Sealy to disadvantage and raise the costs of rival manufacturer suppliers by foreclosing or limiting their access to Mattress Firm and its 2,300 stores nationwide. The theory looks like most vertical merger foreclosure theories. The FTC contended that the post-merger firm would find it profitable to foreclose rival mattress suppliers from access to Mattress Firm, thus raising their costs and limiting their distribution, thereby allowing Tempur Sealy / Mattress Firm to raise prices and reduce output. Again, standard foreclosure theory. In particular, the FTC alleged these effects would take place in the “premium mattress” product market, which it defined as mattresses sold at prices greater than $2,000. More on that later.

The merging parties offered up four primary arguments in response: (1) the FTC’s premium market definition did not make sense or capture the realities of competition; (2) the transaction could not and would not result in foreclosure sufficient to harm rival mattress manufacturers; (3) the merger would generate efficiencies – and in particular, eliminating double marginalization – that would benefit consumers and enhance competition; and (4) that Tempur Sealy’s voluntary commitments, including divestitures and slot commitments, should alleviate any remaining competitive concerns.

Dear reader, the FTC lost on each of these major points. This was a clean sweep victory for Tempur Sealy and Mattress Firm. No wonder the FTC did not appeal. So we are left with Judge Eskridge’s district court opinion. Why is that interesting? I think it is a pretty interesting opinion and an important one when it comes to methods and analysis. There are a few things I want to point out that COTM readers might find interesting. Perhaps the most important analytical feature of Judge Eskridge’s opinion is the foreclosure analysis. COTM readers know I love foreclosure fun and games. And there were some good ones in Tempur Sealy.

Let’s dive in. Again, no plans to summarize the entire 115 page opinion here. You can get that elsewhere. But we are going to jump into each of the major issues in the opinion, why the parties’ prevailed, and what we can learn from it for vertical merger analysis moving forward.

What’s a Premium Mattress? And Whither the Hypothetical Monopolist Test?

The punchline here is that the court rejected the FTC’s proposed market defined around “premium mattresses” priced over $2,000. What is interesting about the court’s analysis is that it is almost entirely focused on Brown Shoe’s practical indicia framework and downplays the importance of the Hypothetical Monopolist Test (HMT).

The FTC loss on market definition was a failure of proof. The court distinguished the FTC’s offering in this case to the evidence in FTC v. Tapestry, in which the FTC proffered a similarly themed market of “accessible luxury” handbags. In Tapestry, Judge Eskridge pointed out that the FTC was able to put together evidence that a distinct market segment of “accessible luxury” handbags was appropriate because the merging parties, the industry, and ordinary-course documents were consistent in identifying such a market. In contrast, Judge Eskridge pointed out the evidence supporting a premium mattress (>$2,000) market was far less consistent and market realities were more consistent with a pricing spectrum. Here is Judge Eskridge:

The opinion is remarkably thorough and fact-intensive when it comes to market definition. And Judge Eskridge makes clear the FTC simply did not have the goods when it came to a documentary showing that “premium mattresses” above $2,000 was a defensible relevant market.

I do want to make one observation about the court’s market definition analysis: Whither the Hypothetical Monopolist Test?

Here is how Judge Eskridge describes the role of the HMT:

I think this sort of favoring of multi-factored practical indicia over the HMT is problematic. But it is worth pointing out.

Now, Judge Eskridge goes ahead to walk through the FTC and the parties’ competing versions of the HMT. The FTC’s expert made a number of decisions here that left Judge Eskridge unsatisfied that the HMT supports the FTC’s market definition. Each of the errors is to do with violating the ceteris paribus assumption in any HMT analysis. I.e. capturing substitution that occurs for reasons other than the HMT’s price increase. For example:

• Concerns that the FTC expert gerrymandered the time period for the HMT to exclude Tempur Sealy efforts by excluding the time period after Tempur Sealy was kicked off the Mattress Firm floor and invested in new sales through other channels;

• The natural experiment examined to conduct the HMT included exclusion of all Tempur Sealy mattresses, not just mattresses in the proposed relevant market, as well as extra promotional effort applied to non-Tempur Sealy mattresses;

• The aggregate diversion rates added up to greater than 100% – 130%, specifically – indicating there was a lot more going on during the relevant time period than just a time increase and a demand response; and

• The FTC expert imposed by assumption a fixed relationship between retail and wholesale prices that did not comport with economic reality.

So yes, part of the punchline here is that the FTC just whiffed on proving up its case when it comes to both routes to establishing a product market definition: practical indicia and the HMT. There certainly are lessons here for issues to avoid in conducting the HMT – and kudos to Tempur Sealy’s economic expert Mark Israel who did a tremendous job explaining the errors to the court, why they mattered, and in what direction those errors biased the FTC’s HMT results. But frankly, the FTC missed the mark by so much the lessons are all of the obvious sort.

I want to focus instead on highlighting a bit of a disturbing trend. The Biden Merger Guidelines downplay the role of the HMT relative to proving up relevant markets by documents and the “practical indicia” listed in Brown Shoe. The rise of the HMT as a primary tool for market definition by courts was in large part because of the indeterminate and subjective nature of the “practical indicia” approach. Well, the Biden FTC and DOJ pushed practical indicia hard in litigation. Certainly there is legal support for the proposition that qualitative practical indicia can be sufficient to establish a market definition. If you look at Biden Administration merger litigations I would describe the shift as flipping from HMT first with practical indicia as a secondary consideration to bolster the HMT market definition on its end. The Biden agency trend seems to be to rely upon practical indicia first followed with an HMT afterthought.

It works sometimes. Sometimes not so much. But I do think the trend is worth watching. Will the Trump FTC and DOJ go back to the primacy of the HMT in litigation? Does it depend on the quality of the documentary evidence available to prove up practical indicia? We shall see. But Tempur Sealy is an example of defendants successfully and skillfully using practical indicia evidence to defeat the agencies. It is also an example of a court finding that relying upon HMT as an afterthought is simply not good enough.

Let’s watch how the FTC and DOJ litigate market definition moving forward and keep this as a placeholder for future discussion for now.

Premium Mattress Foreclosure Fun and Games: “But for Foreclosure” is the Antitrust Calculation that is Sweeping the Nation … Or Something

COTM readers know that thinking about how to calculate foreclosure rates in monopolization cases and vertical mergers is one of my favorite subjects. We discussed it at length in our column about Google. And I’ve written a great deal about the subject in academic writing. For those looking for a primer please start here or this article with Alexander Kraszewksi on this topic.

The fundamental idea of foreclosure – whether in a monopolization case like DOJ v. Google or a vertical merger case like FTC v. Tempur Sealy – is that the defendant can harm competition by depriving a rival from access to a critical input. The theory in Tempur Sealy was simple: after the merger the FTC argued that Tempur Sealy would own Mattress Firm and exclude rival mattress manufacturers from access to its retail floor space. The idea is that access to the floor at Mattress Firm is so important for rival mattress manufacturers that exclusion would cripple them and leave fewer competitive constraints to stop the post-merger firm (Tempur/ Mattress Firm) from raising prices.

The theory raises all sorts of questions. It is really hard for a single firm to pull off a strategy that reduces market output and raises the market price. Why couldn’t rival mattress suppliers find alternative retail space? If the post-merger firm raises market prices wouldn’t new retailers enter? These are all good questions. But antitrust law starts with a really basic one: how effective would the merger be in foreclosing the rival from a critical input it needs to compete. We call that the foreclosure rate.

This is a bit of an oversimplification, because the cases look slightly different depending upon whether they are vertical mergers or, e.g. exclusive dealing cases like DOJ v. Google. But identifying a “foreclosure rate” is usually a first step in establishing whether the plaintiff’s theory of harm has any legs. A high foreclosure rate is NECESSARY to show harm, but not sufficient. A high foreclosure rate shows that a merger might make life hard on a rival, but it does not necessarily mean that competition suffers. Indeed, one really important reason a vertical merger might harm rivals is that it makes the post-merger firm more efficient! A vertical merger that is tremendously pro-competitive will certainly foreclose rivals. Keep in mind – the fundamental reason that courts ask for evidence about the foreclosure rate is because it might help the court understand whether the merger or conduct will ultimately impact competition.

But here I want to highlight a sort of technical point about how courts actually calculate foreclosure rates. The very simple way of calculating foreclosure is what I have described as the “naïve foreclosure approach.” The “naive foreclosure” rate calculates a number that is connected entirely from the modern theory of competitive harm in vertical merger cases.

Let’s think of a really simple example. Coca-Cola and Pepsi compete in the soda market. They offer partially exclusive deals to supermarkets and other retail chains for shelf space. Let’s say Coke offers discounts to supermarkets in exchange for 75% of the soda shelf space in some relevant market. Pepsi has the remaining 25%. The naive foreclosure measure tells you, unsurprisingly, that Coke’s foreclosure rate is 75%.

But what does that 75% foreclosure share tell you about competition between Coke and Pepsi for the shelf space? Remember the question we are interested in. Is Pepsi foreclosed from competing from Coke as a result of these contracts? Is Coke more able to raise market prices and reduce market output because of them? Additional information might be helpful. What if I told you:

• The contracts are 30 days long and terminable at will;

• Coke and Pepsi show up to the retailers and compete for the shelf space every month, but Coke wins more often;

• The supermarkets asked to auction the space off and played Coke and Pepsi against each other.

Would any of these change your view? For each, the naive foreclosure rate would still spit out 75% and support liability. Pepsi is showing up every month and losing the competition more often than not. That competition for the contract is competition the antitrust laws are supposed to protect. But the naive foreclosure measure is inherently biased against it.

Now let’s do more interesting questions. The primary flaw with naive foreclosure rates used in exclusive dealing and vertical merger cases is that they fail to do their job! They do not tell us anything about what is likely to happen with competitive effects. What an economist really wants when measuring the impact of a vertical merger or a set of contracts is to understand what would happen with and without the merger. The naive foreclosure rate leaves out what would happen without the agreements, i.e. do the agreements themselves impact competition?

So how do we improve upon the naive foreclosure rate and get closer to measuring the impact of the contract or merger at issue? Defendants are often in the position of arguing that foreclosure shares omit competitive realities, e.g. “yes the foreclosure rate is high but these units are not really foreclosed from competition so please do not believe the high number.” Think of the DOJ v. Google case. DOJ argues the foreclosure rate is high because every search query run on a mobile phone that has Google as default search is foreclosed from Bing. Google argues “no your honor, the high foreclosure rate is deceptive because users can actually switch easily. In other words, searches we paid for with the allegedly unlawful conduct are not foreclosed from competition by Bing.” It is a very defensive and weak position to argue from because the plaintiff has the advantage of the high foreclosure share and can appeal to case law that says that high foreclosure shares generally support liability.

Most commentators admit the naive measure is flawed and does not help us answer much about the actual impact of the vertical merger or exclusive deal on competition. To do that economists need a “counterfactual.” That is, we need to have an idea of what would happen without the merger or contracts. In Google we would want to know Google’s share of searches in a world without the default search contracts. In Coke we might want to know what Coke’s shelf space share is in jurisdictions where it does not contract and pay for shelf space. Let’s say we know Coke’s shelf space share is 75% where it has the allegedly unlawful contracts but 65% where it does not. The naive measure is 75% and would conclude every single unit Coke sells is foreclosed from Pepsi because of the unlawful contracts even where other evidence indicates that it would still have 65% share otherwise. We want a tighter and more precise measure that captures what happens with and without the allegedly unlawful conduct.

This is where “but for foreclosure” comes in. Back in 2012, I proposed another specific innovation for calculating foreclosure in a manner that better captures competition for distribution: but-for foreclosure (“BFF”). To my knowledge, that scholarship was the first to propose the use of the but for foreclosure rate in exclusive dealing and vertical merger cases. The idea is a somewhat obvious one, to be sure. It simply says that if we are going to bother measuring things – whether foreclosure rates, or output or prices – we ought to measure them carefully and with a counterfactual. The “BFF rate is defined as the difference between the percentage share of distribution foreclosed by the allegedly exclusionary agreements or conduct and the share of distribution in the absence of such an agreement.” Still being obvious and first is better than obvious and not first.

The idea is not a complicated one in practice though sometimes it is hard to find the evidence to allow for a BFF calculation. Let’s say we know Coke has 75% of shelf share with de facto exclusive contracts and without them its share is 65%. The naive foreclosure rate is 75% but the BFF foreclosure rate is 10% (75%-65%) and more accurately captures the impact of the contracts at issue. In DOJ v. Google, Google argued its share would be almost exactly identical with and without the default contracts and so the foreclosure rate should be much closer to zero.

There are a handful of exclusive dealing and vertical merger cases where defendants have invited courts to use the more precise counterfactual foreclosure measure. I have been a part of a few of these either as a lawyer or an expert economist. Courts have accepted that invitation at times. And rejected it other times.

What does this have to do with FTC v. Tempur Sealy? The merging parties invited Judge Eskridge to adopt a but-for foreclosure rate in a vertical merger case and Judge Eskridge not only accepted but relied upon it extensively to conclude the proposed merger could not result in foreclosure sufficient to harm competition. Let me show you what I mean. And before I go too far here – kudos again to defendants’ expert Mark Israel and the Cleary Gottlieb team for putting this together in a way Judge Eskridge clearly understood. Let’s apply this thinking to the mattress case. Here is how Judge Eskridge describes the FTC’s theory:

OK, fair enough. So how are we going to measure foreclosure? The naive foreclosure measure would simply count up Tempur Sealy’s share of sales at Mattress Firm in the relevant market and count them as foreclosed. The naive foreclosure rate would be something like: Tempur Sealy Share at Mattress Firm / All Premium Mattress Sales.

What’s wrong with that? A lot. For starters – and most importantly here, the numerator would conclude that sales that Tempur Sealy was already getting at Mattress Firm BEFORE the merger would be foreclosed from rival suppliers BECAUSE of the merger. Read that again. Makes no sense. The right thing to do is to ask what would happen because of the merger. We want to figure out how the merger can impact competition – so we have to focus on what changes because of the merger. Clearly sales that Tempur Sealy has already earned at Mattress Firm without the merger should not be counted as foreclosed.

Dr. Israel and Tempur Sealy did this with pictures. It is pretty effective. Here is the first picture. It shows that Mattress Firm’s share of premium mattress sales is about 25.1%.

What we are really interested in is out of that 25.1% of Mattress Firm premium mattress sales, what share could the post-merger firm foreclose from rivals? In other words – what does the merger change? One answer is that the absolute maximum foreclosure share attributable to the merger would be the sales of premium mattresses at Mattress Firm not already belonging to Tempur Sealy. There is a picture for that too. 8.8% maximum foreclosure rate.

The merging parties and Dr. Israel go on to argue sensibly that even the 8.8% maximum foreclosure rate is too high for a number of reasons. Again, even that number would assume that every single non-Tempur Sealy premium mattress sale at Mattress Firm before the merger would be foreclosed from Tempur Sealy rivals afterwards. That need not be the case. In practice, Tempur Sealy rivals would likely compete and make competitive offers to access that space. That is not foreclosure. That is competition. But holding that aside – 8.8% represents the highest share of foreclosure the merger could cause. And that’s too low to create competitive harm. It is simply not enough to so weaken Tempur Sealy rivals from competing that they cannot discipline a post-merger price increase.

Here is how Judge Eskridge describes it:

Note that this effective BFF rate presentation put the FTC on the back foot. The FTC was left defending the very awkward and illogical proposition that sales that Tempur Sealy already earned before the merger were somehow foreclosed because of the merger. It makes no sense. But the FTC had to endorse that position:

This is a highly notable development. The BFF foreclosure analysis is clearly more precise in terms of measuring what is attributable to a merger or contract than the naive measures commonly employed by the agencies and sometimes in court. I am not aware of it gaining traction in a vertical merger case – but here it is. Here the court understands well that the BFF foreclosure rate (at least that is what I’m calling it) is what identifies the marginal impact of the vertical merger on foreclosure, which is precisely the legal question in front of the court. Again, here is Judge Eskridge putting these pieces together.

What should COTM readers and practitioners take away from the use of this BFF foreclosure analysis in FTC v. Tempur Sealy other than that I really think that Dr. Israel should have cited me (just kidding, Mark)? I think there are a few lessons:

• Judges can understand complex economic concepts – and counterfactuals have an intuitive appeal to judges that do but-for analysis in all sorts of other areas of law. This was a masterful job, once again, in inviting Judge Eskridge to zero in on identifying the impact of the merger rather than other confounding factors. Arming judges with simple intuition for understanding these concepts is a far more effective way of melding story telling with economics than running away from these concepts. The Tempur Sealy litigation team, including and especially Ryan Shores and Dan Culley, did a great job at this. And this goes doubly for getting Judge Eskridge to understand eliminating double marginalization. More on that in a second.
  
  

• But-for-foreclosure analysis is likely to have more staying power in vertical mergers than in conduct cases. Why? There are so many litigated conduct cases – including very old ones – that have endorsed the naive foreclosure measure. There are BFF foreclosure conduct cases as well, to be sure. But the scarcity of litigated vertical merger challenges alone makes this a more important development.
  
  

• I have written a lot about how to think about thorny questions like how to integrate more precise counterfactual, BFF foreclosure measures with existing case law that is based upon the (higher) naive measures in pieces like this and this. And FWIW, the FTC did not seem prepared at all to deal with these foreclosure arguments. That was a bit surprising. But I think an important failure in the FTC’s case. Not the only one. But an important one.
  
  

Let’s close with some thinking about what is next for vertical mergers in the Trump Administration.

Will the Trump Administration Bring Back Their Own Vertical Merger Guidelines that Recognize Vertical Merger Efficiencies?

I would be remiss if I did not discuss the court’s analysis of vertical merger efficiencies, and in particular its treatment of the elimination of double marginalization (EDM) common in vertical merger analysis. Here again, not to beat a dead horse, but the parties did a very good job explaining the concept. I was not sure Judge Eskridge was really understanding EDM when I read the transcripts and testimony – but he sure got there by the end.

And here again:

Fine. The Court understood EDM. That matters. But that is relatively straightforward. A tougher question is whether the Trump Administration will bring back its own 2020 Vertical Merger Guidelines.

The $64,000 question is whether the Trump Administration will throw out the entire 2023 Biden Administration Merger Guideline project. I’m all for that. It is a major investment. The 2023 Biden Merger Guidelines were a major step backwards for the agencies, their credibility, and the role of the MGs in communicating critical economic concepts to Article III courts. But again, it is a major project and unclear whether the FTC and DOJ will take it on, or potentially revert to the 2020 Trump Merger Guidelines.

I do think that a higher priority ought to be rescinding Guideline 5 of the 2023 Merger Guidelines which purports to cover vertical acquisitions and re-establishing the Trump Administration’s 2020 Vertical Merger Guidelines as the agency approach to vertical transactions. I think this move is a higher priority for a number of reasons:

• There is a significant body of modern horizontal merger case law that has developed since FTC v. Staples (1997) to current; courts can and do rely on that body of law for economic concepts like the HMT, competitive effects analysis, understanding unilateral effects and so forth. The marginal benefit of merger guidelines is greater in the vertical context than the horizontal merger context because there is no such rich body of law elucidating the relevant economic concepts for vertical acquisitions.

• EDM is a case in point. The 2023 Merger Guidelines do not mention it – yet it is a primary concept for understanding whether a vertical transaction is likely to substantially lessen competition. The Trump Administration’s 2020 Vertical Merger Guidelines are excellent on describing foreclosure (RRC) and EDM as both sides of the same unilateral effects coin. The FTC and DOJ ought to revert to the 2020 Vertical Guidelines that take EDM (and vertical contracting efficiencies) seriously. Doing so will make them much more credible when arguing to courts that a particular transaction is not procompetitive. By no means am I saying the FTC would have fared better in Tempur Sealy under the 2020 Vertical Merger Guidelines. But then again, I do not think the Trump FTC would have brought this case in the first place.
  
  

• The 2020 Vertical Merger Guidelines are an analytically superior document in spelling out the relevant economic concepts on both the anticompetitive and procompetitive sides of the ledger. I’ve heard a lot of defenses of the 2023 Merger Guidelines citing old cases and doing away with economics on the grounds that the agencies are “law enforcement” agencies and so citing old cases is good. This is a remarkably bad defense. Article III judges are, well, judges. They know how to read cases. The FTC is no more expert in reading cases to federal judges than their clerks are. What judges want help with is understanding the economic concepts that help interpret facts and their legal import in antitrust cases. The Guidelines are at their best when they do that in a rigorous and clear way. The 2023 Guidelines simply do not. The 2020 Vertical Merger Guidelines did.
  
  

• The new Administration seeks to be both aggressive in antitrust enforcement but to lose the reflexive anti-business hostility the Khan FTC and Kanter DOJ brought to antitrust institutions. Starting with reviving the 2020 Vertical Merger Guidelines is a good signal that they mean to do so. And it is a less costly signal than revising the entire 2023 Merger Guidelines. I do hope the Trump FTC and DOJ get around to that project as well. But “fixing” the Vertical Merger Guidelines would be a good start – and they can do it in fairly short order by reverting to the 2020 version.

Today’s COTM is mostly a few things to keep your eye on in the vertical merger space:

• The relative importance of the HMT versus practical indicia when the agencies litigate market definition;

• The potential rise of but-for-foreclosure analysis in vertical merger cases, as exemplified by Judge Eskridge and no doubt replicated in the future by others (again, a cite would not hurt); and

• Do we see the Trump FTC and DOJ take on the lower cost Merger Guideline revision by reviving the Trump Vertical Merger Guidelines of 2020?

Things to watch. See you later this week. And as always, subscribe, send to a friend, upgrade to paid and so forth.