On August 28, 2023, tthe NAM filed an amicus brief opposing the FTC’s attempt to block Amgen’s merger with Horizon, the sole manufacturer of two unique FDA-approved medicines for thyroid eye disease and chronic refractory gout. Even though Amgen and Horizon are not competitors, the FTC seeks to prevent the merger based on the speculative theory that hypothetical new competitors to Horizon’s products might achieve regulatory approval at some undetermined time in the future and that Amgen may then engage in price discounting practices to limit competition.
We argue in our brief that the FTC’s speculative theory of competitive harm is unsupported by antitrust law. Adopting the FTC’s theory would harm competition and consumers by chilling merger activity--due to uncertainty over what activity the FTC could construe as anticompetitive--which could result in further innovation and efficiencies.
Fortunately, on September 1, 2023, the parties reached an agreement on a consent order to resolve the case and allow Amgen to continue with its acqusition of Horizon.