The old saying goes that there are only two guarantees in life: death and taxes. But for the last few years, it seems frivolous Federal Trade Commission (FTC) challenges have also joined the list. The FTC has yet again decided to legally challenge a pro-competitive merger, despite the Commission’s repeated recent failures in court. As Kroger bids to merge with Albertsons, the FTC is setting itself up for potential failure yet again by challenging it.

Under Lina Khan and the Biden administration, the FTC has continually attempted to extend the bounds of its mission by employing novel definitions of harm in a market, often ignoring consumer well-being in the process. It has attempted to define markets as narrowly as possible to make normal competitive mergers look like monopolies. Overly narrow market definitions allow the FTC to call almost anything a monopoly, which it now does frequently, such as in the case of the Microsoft-Activision merger.

In their new definitions of harm, the FTC has lowered the standard for market concentration to 30 percent, far below the 50 percent standard that courts have required to be considered to have monopoly power. It is even further below the 60 percent standard the Federal Communications Commission applied to AT&T, which is supported by academic research.

While a 30 percent market threshold for a company to be regulated as a monopoly is economically obtuse, as of September 2022 the combined market share of Albertsons and Kroger is only 10.8 percent. That is significantly less than the FTC’s poorly thought-out 30 percent threshold. And that is after years of decline for Kroger’s market share.

Should the merger be completed, Walmart would still have more than twice the market share of the combined companies with over 25 percent of the grocery sales market. To alleviate concerns about Kroger having even a local monopoly, 413 stores will be sold in overlapping markets as part of the deal, and the companies are willing to sell another 237 if needed. After accounting for divestiture Kroger would still only be the third largest grocery provider with only 9 percent of the market.

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Justin Leventhal is a senior policy analyst for the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.