extend outside the US. Instead of this, said O'Malia, "the Commission's proposed Guidance ignores the literal statutory construction of sections 2(i) and prejudicially switches the analysis" by moving the burden onto market participants to prove why they are not subject to the swap provisions of the US. Concurring with O'Malia, Sommers said that even the market failures that have prompted the wave of regulation surrounding the financial markets "does not justify the expansive view the Commission has taken of its jurisdictional reach, and does not justify the implication that other nations are not capable of effective regulation." From this perspective, the concern is that if the CFTC is perceived to overreach its authority outside US borders then foreign nations will react to this. O'Malia said that the proposed guidelines, as they currently stand are likely to provoke other nations to enact stricter swap rules on US firms in retaliation, therefore burdening these firms and placing them at a disadvantage to market participants. Lack of harmonisation Sommers and O'Malia were both also critical of the CFTC's lack of co-ordination with the Securities Exchange Commission (SEC) and displayed a distinct cynicism about the decision to issue interpretive guidance instead of actual rules. The SEC recently issued a statement of general policy on the sequence of compliance dates for the final rules applicable to the security-based swaps market. Sommers said that the CFTC should be harmonising with the SEC in both the content and timing of its regulations and yet isn't, while O'Malia