Dual Enforcement of Electric Utility Mergers and Acquisitions

Abstract

The Federal Trade Commission (FTC) and Department of Justice (DOJ) oversee most mergers and acquisitions. The Federal Energy Regulatory Commission (FERC) oversees electric utility mergers and acquisitions. In the last ten years, policy efforts have attempted to align FERC with the FTC/DOJ - including from within the FTC/DOJ. However, FERC continues to enforce its own public interest standards and use methods that the FTC/DOJ see as antiquated. In 2016, FERC has opened the door again to align with the FTC and DOJ. This paper compares the merger and acquisition procedures and methods used by the agencies. It argues that FERC should keep its identity because it casts a wider net and hence it is more likely to fail to identify mergers as not harmful when they are (false negative) even if it can over-identify mergers as harmful when they are not (false positives).