FEDERAL TRADE COMMISSION

Notice of Policy of Disclosing Investigations of Announced Mergers

AGENCY: Federal Trade Commission.

ACTION: Notice of revised policy.

SUMMARY: The Federal Trade Commission is revising its policy concerning disclosure of investigations. The Commission's policy is to conduct its investigations on a nonpublic basis. In the past, the Commission has established some narrow exceptions to that policy. The Commission is now establishing an additional exception for circumstances in which a party to a merger or other transaction has publicly disclosed the existence of a transaction or proposed transaction in a press release or in a public filing with a governmental body. In those limited circumstances, the Commission authorizes public disclosure of whether the agency is investigating the transaction or proposal under Sections 7 and 11 of the Clayton Act. Inquiries seeking disclosure under this authority should be addressed to the Commission's Office of Public Affairs.

This change of policy will more closely conform the Commission's practice in such matters with that of the Antitrust Division of the Department of Justice. The change of policy does not alter the Commission's confidentiality policies or practices with respect to documents and information submitted to or developed by the agency in connection with such investigations, or with respect to information concerning the course of such investigations. The change of policy also does not affect the Commission's confidentiality policies or practices regarding any other types of investigations.

EFFECTIVE DATE: [Insert date of publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT: Victoria A. Streitfeld, Office of Public Affairs, 202-326-2718, or Stephen Calkins, General Counsel, 202-326-2481.

SUPPLEMENTARY INFORMATION: The Commission's policy is to hold confidential the existence and targets of law enforcement investigations, until either the Commission issues or authorizes a complaint or the matter is closed. See 42 FR 64135, Dec. 22, 1977. The Commission believes generally that public disclosure of pending investigations and identification of targets before the Commission has had an opportunity to weigh the evidence may unjustifiably harm the companies investigated and interfere with the conduct and successful resolution of such matters. The laws applicable to the Commission do not, however, require confidential treatment of the existence of investigations, and the Commission's policy has long included narrow exceptions for disclosure of "industrywide investigations" (where particular targets are not identified), and of particular investigations that involve significant risk of economic harm or risk to public health or safety.

The Commission is now establishing a further exception, permitting disclosure of whether the agency is investigating a proposed or consummated merger or other transaction under Sections 7 and 11 of the Clayton Act, 15 U.S.C. 18, 21, where a party to the transaction has issued a press release or made a public filing with a governmental body that discloses the existence of the transaction. The Commission considers the concerns underlying the general policy of nondisclosure to have little application in these instances. Furthermore, while the Hart-Scott-Rodino ("HSR") Act prohibits the Commission from making public (except in specified circumstances) "information or documentary material filed with the . . . Commission pursuant to" that Act, 15 U.S.C. 18a(h), nothing in the HSR Act prevents the Commission from publicly disclosing information that has already been made available to the public by a party, even if that information is also included in an HSR filing. Accordingly, where a party has issued a press release or made a public filing with a governmental body that discloses the existence of a transaction or proposed transaction, the Commission authorizes public disclosure of whether the agency is investigating the matter. This approach conforms closely with that of the Antitrust Division of the Department of Justice, with which the Commission shares enforcement of the Clayton Act.

Regardless of whether a transaction or proposed transaction is reported by the media, however, the agency will disclose an investigation under this authority only after the Office of Public Affairs (or another designated office) has confirmed that a party has in fact disclosed the existence of the transaction or proposal in the manner stated. Inquiries seeking disclosure under this authority should be addressed to the Office of Public Affairs.

The Commission is not changing its treatment of any other information relating to mergers or similar transactions. Thus, the authority granted here to disclose the existence of certain investigations does not include authority to disclose any details about those investigations. In particular, because the Commission considers the HSR Act to restrict disclosure of whether a party to a proposed transaction has filed a notification under that Act, the agency will not, except as permitted by that law, reveal whether a filing under HSR has been made. The Commission will continue to keep confidential, as appropriate under its existing laws and policies, documents and information submitted pursuant to the HSR Act or relating to an investigation under that Act. The policy revision also does not affect the confidentiality treatment of other types of investigation under the Commission's antitrust or consumer protection authority.

By direction of the Commission.

Donald S. Clark
Secretary