1

Separate Statement of Commissioner Maureen K. Ohlhausen

ZF Friedrichshafen AG/TRW Automotive Holdings Corp.

File No. 141-0235

May 8, 2015

I voted in favor of issuing for public comment the proposed consent agreement in this 

matter. As discussed below, there is sufficient evidence to provide me with a reason to believe 

that, absent a remedy, the transaction is likely to violate Section 7 of the Clayton Act. I also find 

that the proposed consent, which is intended to remedy any such violation, is in the public 

interest.

Based on the evidence presented to me – including the evidence discussed in the Analysis 

to Aid Public Comment and the majority statement in this matter – I am satisfied that the “reason 

to believe” prong that the Commission must assess in issuing a complaint, including in the 

consent context, is met here. It is important to note that the Commission makes the reason to 

believe determination before a full evidentiary and legal record is developed during a trial on the 

merits, which suggests that the standard must necessarily be lower than what the Commission or 

a court should apply for finding ultimate liability. Individual Commissioners, of course, have

different views on how much evidence is necessary to satisfy the reason to believe standard. 

Unfortunately, there does not appear to be a consensus view on what the standard requires. I 

respect Commissioner Wright’s view that the standard was not met for him in this case. For the 

reasons identified in the majority statement in this matter, I determined that there is a credible 

basis on which to conclude that this merger may enhance the vulnerability to coordinated effects 

that already exists in the relevant market at issue.

1

I further view this consent to be in the public interest. In my time as a Commissioner, I 

have advocated for transparency, predictability, and fairness across a variety of settings.

2 Those 

three critical goals apply equally to the merger context. A practical problem in our merger 

review process arises, however, where investigations are cut short by the merging parties, which, 

for business, strategic, or other reasons, offer staff and then ultimately the Commission a 

 1 See 2010 HORIZONTAL MERGER GUIDELINES § 7.1.

2 Those settings have included the use of disgorgement in competition cases, the proper scope of our standalone 

Section 5 authority, the intersection of intellectual property and antitrust, and the treatment of U.S. businesses by 

foreign antitrust jurisdictions. See, e.g., Dissenting Statement of Commissioner Maureen K. Ohlhausen, In re

Cardinal Health, Inc., FTC File No. 101-0006 (Apr. 17, 2015), available at https://www.ftc.gov/publicstatements/2015/04/dissenting-statement-commissioner-maureen-k-ohlhausen-cardinal-health-inc (dissenting from

consent involving disgorgement of profits for alleged Section 2 violation); Maureen K. Ohlhausen, Section 5 of the 

FTC Act: Principles of Navigation, 2 J. ANTITRUST ENFORCEMENT 1 (2014), available at http://www.ftc.gov/publicstatements/2013/10/section-5-ftc-act-principles-navigation-0 (advocating for additional guidance on the FTC’s use 

of its standalone Section 5 authority); Dissenting Statement of Commissioner Maureen K. Ohlhausen, In re

Motorola Mobility LLC & Google, Inc., FTC File No. 121-0120 (Jan. 3, 2013), available at

https://www.ftc.gov/public-statements/2013/01/statement-commissioner-maureen-ohlhausen-0 (dissenting from 

consent involving standalone Section 5 claim against holder of standard-essential patents); Testimony of 

Commissioner Maureen K. Ohlhausen, “The Foreign Investment Climate in China: U.S. Administration 

Perspectives on the Foreign Investment Climate in China,” before the U.S.-China Economic and Security Review 

Commission (Jan. 28, 2015), available at https://www.ftc.gov/public-statements/2015/01/testimony-commissionermaureen-k-ohlhausen-hearing-foreign-investment (discussing importance of foreign antitrust jurisdictions pursuing 

the goals of predictability, transparency, and fairness).
2

proposed remedy in lieu of responding to a Second Request or other compulsory process. In 

such cases, the available evidence may be sufficient to provide reason to believe the proposed 

transaction would violate Section 7, but a full investigation might (or might not) reveal 

additional evidence sufficient to counterbalance the available evidence and support closing the 

investigation altogether. In that situation, the goals of predictability and fairness counsel against 

forcing merging parties (and Commission staff) to incur the significant costs associated with a 

full-phase investigation. Merging parties also expend non-trivial amounts of time and money in 

developing and then proposing remedies to FTC staff; those good-faith efforts – particularly ones 

that involve coordination of remedies across antitrust jurisdictions – should not be discounted. 

The public interest analysis thus should take into account the need for predictability and fairness

for merging parties in these circumstances.