Federal Register / Vol. 89, No. 192 / Thursday, October 3, 2024 / Notices 80559 

director, all of Albion, Illinois; a group 

acting in concert, to retain voting shares 

of Citizens Bancshares, Inc., and thereby 

indirectly retain voting shares of 

Citizens National Bank of Albion, both 

of Albion, Illinois. 

Board of Governors of the Federal Reserve 

System. 

Michele Taylor Fennell, 

Associate Secretary of the Board. 

[FR Doc. 2024–22820 Filed 10–2–24; 8:45 am] 

BILLING CODE P 

FEDERAL TRADE COMMISSION 

[File No. 241 0008] 

Chevron Corporation and Hess 

Corporation; Analysis of Agreement 

Containing Consent Order To Aid 

Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

Federal law prohibiting unfair methods 

of competition. The attached Analysis of 

Proposed Consent Order to Aid Public 

Comment describes both the allegations 

in the complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before November 4, 2024. 

ADDRESSES: Interested parties may file 

comments online or on paper by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Please write: ‘‘Chevron/Hess; 

File No. 241 0008’’ on your comment 

and file your comment online at https:// 

www.regulations.gov by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, please mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Mail 

Stop H–144 (Annex M), Washington, DC 

20580. 

FOR FURTHER INFORMATION CONTACT: 

Albert Teng (202–326–3272), Bureau of 

Competition, Federal Trade 

Commission, 400 7th Street SW, 

Washington, DC 20024. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule § 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of 30 days. The following Analysis of 

Agreement Containing Consent Order to 

Aid Public Comment describes the 

terms of the consent agreement and the 

allegations in the complaint. An 

electronic copy of the full text of the 

consent agreement package can be 

obtained from the FTC website at this 

web address: https://www.ftc.gov/newsevents/commission-actions. 

The public is invited to submit 

comments on this document. For the 

Commission to consider your comment, 

we must receive it on or before 

November 4, 2024. Write ‘‘Chevron/ 

Hess; File No. 241 0008’’ on your 

comment. Your comment—including 

your name and your State—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the https://

www.regulations.gov website. 

Because of the agency’s heightened 

security screening, postal mail 

addressed to the Commission will be 

delayed. We strongly encourage you to 

submit your comments online through 

the https://www.regulations.gov 

website. If you prefer to file your 

comment on paper, write ‘‘Chevron/ 

Hess; File No. 241 0008’’ on your 

comment and on the envelope, and mail 

your comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Mail Stop H–144 (Annex M), 

Washington, DC 20580. 

Because your comment will be placed 

on the publicly accessible website at 

https://www.regulations.gov, you are 

solely responsible for making sure your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include sensitive personal information, 

such as your or anyone else’s Social 

Security number; date of birth; driver’s 

license number or other State 

identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure your 

comment does not include sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, your comment should not 

include any ‘‘trade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided by section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule § 4.10(a)(2), 16 CFR 

4.10(a)(2)—including competitively 

sensitive information such as costs, 

sales statistics, inventories, formulas, 

patterns, devices, manufacturing 

processes, or customer names. 

Comments containing material for 

which confidential treatment is 

requested must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’ 

and must comply with FTC Rule 

§ 4.9(c). In particular, the written 

request for confidential treatment that 

accompanies the comment must include 

the factual and legal basis for the 

request and must identify the specific 

portions of the comment to be withheld 

from the public record. See FTC Rule 

§ 4.9(c). Your comment will be kept 

confidential only if the General Counsel 

grants your request in accordance with 

the law and the public interest. Once 

your comment has been posted on 

https://www.regulations.gov—as legally 

required by FTC Rule § 4.9(b)—we 

cannot redact or remove your comment 

from that website, unless you submit a 

confidentiality request that meets the 

requirements for such treatment under 

FTC Rule § 4.9(c), and the General 

Counsel grants that request. 

Visit the FTC website at https://

www.ftc.gov to read this document and 

the news release describing this matter. 

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding, as 

appropriate. The Commission will 

consider all timely and responsive 

public comments it receives on or before 

November 4, 2024. For information on 

the Commission’s privacy policy, 

including routine uses permitted by the 

Privacy Act, see https://www.ftc.gov/ 

site-information/privacy-policy. 

Analysis of Agreement Containing 

Consent Order To Aid Public Comment 

I. Introduction and Background 

The Federal Trade Commission 

(‘‘Commission’’) has accepted for public 

comment, subject to final approval, an 

Agreement Containing Consent Order 

(‘‘Consent Agreement’’) from Chevron 

Corporation (‘‘Chevron’’) and Hess 

Corporation (‘‘Hess’’). Pursuant to an 

Agreement and Plan of Merger dated 

October 22, 2023 (‘‘Merger Agreement’’), 

Chevron has agreed to acquire Hess 

(‘‘the Proposed Acquisition’’). The 

purpose of the Consent Agreement is to 

remedy the anticompetitive effects that 

otherwise would result from the 

Proposed Acquisition. 

Chevron and Hess compete with 

members of the Organization of 

Petroleum Exporting Countries 

(‘‘OPEC’’) and ten affiliated non-OPEC 

participating countries (collectively 

‘‘OPEC Oil Producers’’) in the global 


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80560 Federal Register / Vol. 89, No. 192 / Thursday, October 3, 2024 / Notices 

production and sale of crude oil. Hess 

Chief Executive Officer (‘‘CEO’’) John B. 

Hess (‘‘Mr. Hess’’) has communicated 

publicly and privately with OPEC 

representatives and oil ministers of 

OPEC member states about global 

output and other dimensions of crude 

oil market competition, including 

encouraging OPEC representatives in 

their stated mission to stabilize global 

oil markets. Mr. Hess has also made 

public statements praising OPEC for its 

role in stabilizing the oil market and oil 

prices. 

Under the terms of the Merger 

Agreement, Chevron is required to take 

all actions necessary to appoint Mr. 

Hess as a member of the board of 

directors of Chevron. The appointment 

of Mr. Hess to Chevron’s board as a 

result of the Proposed Acquisition 

would amplify the importance and 

likely effect of any such public or 

private communications, and therefore 

heighten the risk of harm to 

competition. In particular, Mr. Hess’s 

post-merger appointment to Chevron’s 

board would give him a larger platform 

from which to communicate on these 

issues, as well as decision-making input 

to one of the leading public integrated 

energy companies. 

Under the terms of the proposed 

Decision and Order (‘‘Order’’), Chevron 

is prohibited from appointing Mr. Hess 

to its board or allowing him to serve in 

an advisory or consulting capacity to, or 

as a representative of, Chevron or the 

Chevron board, with a limited 

exception. Chevron may consult with 

Mr. Hess and allow him to serve in an 

advisory or consulting capacity to, or as 

a representative of, Chevron solely 

related to interactions and discussions 

with Guyanese government officials 

about Hess’s oil-related and health 

ministry-related activities in Guyana, 

and with the Salk Institute’s Harnessing 

Plants Initiative. Chevron is required to 

attest on a regular basis that it is 

complying with the Order. 

The Consent Agreement is thus 

designed to remedy allegations in the 

Commission’s Complaint that the 

Proposed Acquisition, if consummated, 

would violate section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18, and 

section 5 of the FTC Act, as amended, 

15 U.S.C. 45, by meaningfully 

increasing the risk of coordination in 

the relevant market. Absent a remedy, 

placing Mr. Hess on the Chevron board 

would harm the competitive process. 

The Consent Agreement has been 

placed on the public record for 30 days 

for receipt of comments from interested 

persons. Comments received during this 

period will become part of the public 

record. After 30 days, the Commission 

will review the comments received and 

decide whether it should withdraw, 

modify, or finalize the proposed Order. 

II. The Merging Parties 

Chevron is a public integrated energy 

company, with reported revenues in 

2023 of $196.9 billion. Chevron has 

crude oil production operations in the 

United States and operates all around 

the world. Chevron is headquartered in 

San Ramon, California. Hess is a public 

multinational corporation 

headquartered in New York, New York, 

engaged in the exploration and 

production of crude oil with operations 

in the United States and other countries. 

In 2023, Hess reported $10.6 billion in 

revenue. 

III. The Agreement and Plan of Merger 

Pursuant to the Agreement and Plan 

of Merger between Chevron and Hess 

dated October 22, 2023, Chevron agreed 

to acquire Hess in an all-stock 

transaction valued at approximately $53 

billion. Section 1.3(a) of the Merger 

Agreement states that Chevron and its 

board of directors shall, subject to Mr. 

Hess’s acceptance, take all actions 

necessary to appoint Mr. Hess to the 

Chevron board of directors. The 

Commission’s Complaint alleges that 

this effect—Mr. Hess’s appointment to 

the Chevron board—of the Proposed 

Acquisition, if consummated, would 

violate section 7 of the Clayton Act and 

section 5 of the FTC Act. 

IV. Relevant Market 

A relevant product market in which to 

assess the Proposed Acquisition’s 

anticompetitive effects is the 

development, production, and sale of 

crude oil. Crude oil purchasers 

generally cannot switch to alternative 

commodities without facing substantial 

costs. Chevron and Hess are engaged in 

the development, production, and sale 

of crude oil. A relevant geographic 

market in which to analyze the 

Proposed Acquisition is global. 

V. Effects of the Proposed Acquisition 

The Commission’s Complaint alleges 

that the Proposed Acquisition poses 

risks to competition including 

meaningfully increasing the risk of 

coordination among remaining firms in 

the relevant market. As stated in the 

Commission’s Complaint, Mr. Hess’s 

history of communications and 

supportive messaging to OPEC 

demonstrates encouragement of OPEC’s 

output stabilizing agenda and may also 

signal how OPEC’s decisions may be 

received by other market participants. 

Such encouragement reduces the 

unpredictability of the non-OPEC 

response to OPEC’s output decisions. 

Because Chevron is substantially larger 

than Hess—Chevron is one of the 

world’s ten largest oil enterprises by 

market capitalization and the fourth 

largest public, non-state-owned oil 

company—Mr. Hess’s elevation to the 

Chevron board would amplify the 

importance and likely effect of any 

public or private communications on 

these issues, and meaningfully increase 

the risk of industry coordination. 

The proposed Order presents 

significant relief for these concerns and 

imposes effective and administrable 

relief. The Commission’s Complaint and 

the proposed Order make clear that 

communications by oil executives that 

support and encourage OPEC members 

and foreign oil ministers to stabilize oil 

output and prices can facilitate 

opportunities for other oil executives to 

act in support of these objectives and 

may give rise to legal liability. This 

proposed Order remedies the harm to 

competition from the agreement to place 

Mr. Hess on the Chevron board, 

including meaningfully increasing the 

risk of industry coordination. The 

Commission continues to investigate 

mergers and acquisitions activity in the 

oil and gas industry and its risks to 

competition, as well as problematic 

unilateral signaling and coordination 

and attempted coordination among 

market participants. 

VI. The Proposed Order 

The proposed Order imposes several 

terms to remedy these concerns. First, 

the proposed Order prohibits Chevron 

from appointing Mr. Hess to Chevron’s 

board—as required by the Merger 

Agreement—or allowing him to serve in 

an advisory or consulting capacity to, or 

as a representative of, Chevron or the 

Chevron board. The proposed Order 

allows Chevron to consult with Mr. 

Hess and allows him to serve in an 

advisory or consulting capacity to, or as 

a representative of, Chevron solely 

related to interactions and discussions 

with Guyanese government officials 

about Hess’s oil-related and health 

ministry-related activities in Guyana, 

and with the Salk Institute’s Harnessing 

Plants Initiative. 

The proposed Order also contains 

provisions to ensure the effectiveness of 

the relief, including obtaining 

information from Chevron that it is 

complying with the Order; requiring 

Chevron to submit a yearly compliance 

report containing sufficient information 

and documentation to enable the 

Commission to determine 

independently whether Chevron is in 

compliance with the Order; and 

requiring that Chevron maintain specific 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 89, No. 192 / Thursday, October 3, 2024 / Notices 80561 

1United States produces more crude oil than any 

country, ever, U.S. Energy Information 

Administration (Mar. 11, 2024), https://

www.eia.gov/todayinenergy/

detail.php?id=61545#:∼:text=The%20

United%20States%20produced%20more,six%

20years%20in%20a%20row. 

2See, e.g., Compl. ¶¶ 25–49. 

3Press Release, Fed. Trade Comm’n, FTC Order 

Bans Former Pioneer CEO from Exxon Board Seat 

in Exxon-Pioneer Deal (May 2, 2024), https://

www.ftc.gov/news-events/news/press-releases/2024/ 

05/ftc-order-bans-former-pioneer-ceo-exxon-boardseat-exxon-pioneer-deal; see also Statement of 

Chair Lina M. Khan in the Matter of Exxon Mobil 

Corporation, No. 241–0004 (May 2, 2024), https:// 

www.ftc.gov/system/files/ftc_gov/pdf/ 

2410004exxonpioneerlmkstmt1_0.pdf; Concurring 

Statement of Comm’r Rebecca Kelly Slaughter in 

the Matter of ExxonMobil Co., No. 241–0004 (May 

2, 2024), https://www.ftc.gov/system/files/ftc_gov/ 

pdf/2410004exxonrksstmt_0.pdf; Concurring 

Statement of Comm’r Alvaro M. Bedoya in the 

Matter of ExxonMobil Co./Pioneer Natural Resource 

Co., No. 241–0004 (May 2, 2024), https://

www.ftc.gov/system/files/ftc_gov/pdf/ 

2410004exxonpioneerambstmt_0.pdf. 

4See Dissenting Statement of Commissioner 

Andrew N. Ferguson in the Matter of Chevron 

Corporation and Hess Corporation, No. 241–0008 

(Sep. 27, 2024); Dissenting Statement of 

Commissioner Melissa Holyoak in the Matter of 

Chevron Corporation and Hess Corporation, No. 

241–0008 (Sep. 27, 2024). 

5 Dissenting Statement of Commissioner Andrew 

N. Ferguson in the Matter of Chevron Corporation 

and Hess Corporation, at 2. 

6 See Tom Wilson, Saudi Arabia ready to 

abandon $100 crude target to take back market 

share, Financial Times (Sep. 26, 2024), https://

www.ft.com/content/1d186f62-5941-4f9e-aef1- 

7d93a8a696cd. 

1 15 U.S.C. 53(b). 

2 See Devensoft, The Top Mergers and 

Acquisitions of 2023—Meet the Power Players 

Behind the Year’s Largest Deals (Feb. 1, 2024), 

https://www.devensoft.com/blog/the-top-mergersand-acquisitions-of-2023/; Press Release, Fed. Trade 

Comm’n, FTC Order Bans Former Pioneer CEO from 

Exxon Board Seat in Exxon-Pioneer Deal (May 2, 

2024), https://www.ftc.gov/news-events/news/pressreleases/2024/05/ftc-order-bans-former-pioneerceo-exxon-board-seat-exxon-pioneer-deal (listing 

$64.5 billion as the value of Exxon’s acquisition of 

Pioneer); Compl., In re Chevron Corp., No. 241– 

0008 at ¶ 17 (F.T.C. Sept. 26, 2024) (listing $53 

billion as the value of Chevron’s acquisition of Hess 

Corporation) [hereinafter Compl.]. 

3 Letter from Charles E. Schumer, U.S. Senator, 

et al., to Lina Khan, Chair, Fed. Trade Comm’n, at 

1 (Nov. 1, 2023) https://www.democrats.senate.gov/ 

imo/media/doc/ 

Letter%20to%20FTC%20re%20Exxon-Pioneer.pdf. 

4 Id.. 

5 Id. at 3. 

6 Id. at 4. 

7 See Press Release, Fed. Trade Comm’n, FTC 

Order Bans Former Pioneer CEO from Exxon Board 

Seat in Exxon-Pioneer Deal (May 2, 2024), https:// 

www.ftc.gov/news-events/news/press-releases/2024/ 

05/ftc-order-bans-former-pioneer-ceo-exxon-boardseat-exxon-pioneer-deal; Joint Dissenting Statement 

of Commissioners Melissa Holyoak and Andrew N. 

Ferguson in the Matter of Exxon Mobil Corporation, 

Commission File No. 241–0004 (May 2, 2024), 

https://www.ftc.gov/legal-library/browse/casesproceedings/public-statements/joint-dissentingstatement-commissioners-melissa-holyoak-andrewn-ferguson-matter-exxon-mobil [hereinafter Exxon 

Dissent]. 

8 See e.g., @SenSchumer, X (May 12, 2024, 4:07 

p.m.), https://x.com/SenSchumer/status/ 

1789749253956399528. 

written communications. The proposed 

Order also requires Chevron to 

distribute the Order to each of its 

officers and directors. 

The purpose of this analysis is to 

facilitate public comment on the 

Consent Agreement and proposed Order 

to aid the Commission in determining 

whether it should make the proposed 

Order final. This analysis is not an 

official interpretation of the proposed 

Order and does not modify its terms in 

any way. 

By direction of the Commission, 

Commissioners Holyoak and Ferguson 

dissenting. 

Joel Christie, 

Acting Secretary. 

Statement of Chair Lina M. Khan Joined by 

Commissioner Rebecca Kelly Slaughter and 

Commissioner Alvaro Bedoya 

The Organization of the Petroleum 

Exporting Countries (OPEC) is a cartel that, 

for decades, has enjoyed outsized control 

over oil prices in the United States. When 

OPEC and its allies, collectively known as 

OPEC+, decide to limit or cut back oil 

production, American consumers pay more 

at the pump and American businesses face 

higher costs. In the early 2010s, technological 

advances led to a surge in U.S. production— 

an increase that has let the United States 

emerge as the world’s largest oil producer.1

This development has positioned U.S. crude 

oil producers to serve as a competitive check 

on OPEC+, protecting Americans from the 

whims of a foreign cartel. 

Greater production at home should mean 

Americans enjoy lower prices when filling 

their tanks or heating their homes. But when 

U.S. oil executives communicate privately 

and publicly with high-level OPEC 

representatives to support them in their 

stated mission to ‘‘stabilize’’ or limit global 

production, it threatens to replace the churn 

and dynamism of a competitive market with 

the ossification of a cartel. While this may 

boost the companies’ bottom lines, it means 

Americans pay inflated prices. 

Today’s complaint identifies statements by 

Hess Corporation CEO John Hess that 

signaled support for efforts by OPEC+ to 

stabilize production.2 The proposed order 

would prohibit Chevron Corporation from 

appointing Mr. Hess to its Board of Directors. 

This action builds on the Commission’s 

action in Exxon-Pioneer, which surfaced 

troubling statements by Pioneer CEO Scott 

Sheffield that suggested efforts to coordinate 

with members of OPEC+.3

Commissioners Ferguson and Holyoak 

dissent from this matter, as they do not 

believe that a CEO communicating with a 

foreign cartel about output should be central 

to the antitrust analysis here.4 Commissioner 

Ferguson writes, for example, that a 

sophisticated firm like Chevron would have 

a ‘‘strong incentive to ensure that its officers 

and directors avoid risky conversations with 

OPEC representatives.’’ 5 We are unaware of 

any research showing that sophisticated 

firms are less likely to violate the antitrust 

laws, or studies finding that the extent to 

which a firm complies with the law 

correlates with the size of its legal 

department. We do not believe that the 

Commission should use a firm’s 

sophistication, or the elite credentials of its 

executives, as an input into our assessment 

of their likely behavior. 

The Commission’s actions in Chevron-Hess 

and Exxon-Pioneer mark an important step 

towards ensuring that U.S. oil producers are 

serving as a competitive check on OPEC+ 

rather than subordinating their independent 

decision-making to the goals set by a cartel. 

Indeed, news outlets last week reported that 

OPEC+ and its members are preparing to 

increase oil production rates amid increasing 

supply from U.S. producers.6 Rivals 

responding to one another by increasing 

production, rather than coordinating to hold 

it back, represents the type of competitive 

dynamic the antitrust laws were designed to 

protect. 

Dissenting Statement of Commissioner 

Melissa Holyoak 

For the second time in five months, the 

Majority has used its leverage in the HSR 

process to extract a consent from merging 

parties with no reason to believe the law has 

been violated.1 To make it worse, once again, 

the consent targets an individual and 

deprives him of his contractual rights. I 

dissent. 

The two largest mergers announced in 

2023 were the $64.5 billion acquisition of 

Pioneer Natural Resources by Exxon Mobil 

Corporation and the $53 billion acquisition 

of Hess Corporation by Chevron 

Corporation.2 Not only were they the two 

largest mergers of 2023, the mergers involved 

oil companies and attracted the ire of certain 

elected officials. In November of 2023, right 

after the mergers were announced, 23 

senators wrote to the FTC expressing their 

‘‘concerns about two blockbuster oil-and-gas 

deals.’’ 3 The letter urged the Commission to 

‘‘carefully consider all the possible 

anticompetitive harms’’ from the proposed 

mergers because the ‘‘Industry Is Already Too 

Concentrated’’ 4 and ‘‘The FTC Must Protect 

Americans from Big Oil.’’ 5 The letter 

classified the Commission’s efforts as ‘‘[t]he 

fight against Big Oil’’ and concluded that the 

Commission should be investigating ‘‘to 

determine whether these energy giants 

should be broken up once again.’’ 6 After the 

Commission published its complaint and 

order in Exxon back in May,7 there was still 

significant opposition to the deal between 

Chevron and Hess Corporation.8

But herein lies the problem: no legitimate 

and factually supported theory of harm 

existed for the Commission’s Majority to 

execute the bidding of the political left. Still, 

the fact that the Commission opted not to 

challenge the biggest merger of 2023 seems 

to have been lost on the press. So the 

Majority got what it wanted. And they are 

trying to repeat the play here. Rather than 

accept reality and any political blowback, the 

Majority creates a sequel to the fairy tale in 

Exxon where section 7 of the Clayton Act 

means whatever the Majority needs it to 

mean to appease political demands. 


ddrumheller on DSK120RN23PROD with NOTICES1
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9 15 U.S.C. 18. 

10 Brown Shoe Co. v. United States, 370 U.S. 294, 

323, 325 (1962). 

11 See Fed. R. Civ. P. 12(b)(6); see generally 

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007). 

12 My analysis is limited to whether his conduct 

is sufficient to create anticompetitive coordinated 

effects that may substantially lessen competition 

under section 7 of the Clayton Act. 

13 Chevron Leadership, https://

www.chevron.com/who-we-are/ 

leadership#boardofdirectors (last visited Sep. 16, 

2024) (listing the company’s twelve board 

members); Compl. ¶ 10. 

14 To my knowledge, the only other circumstance 

where such a novel theory has been advanced was 

in the Commission’s complaint against Exxon and 

Pioneer. See Compl., In the Matter of Exxon Mobil 

Corp., No. 241–0004 (F.T.C. May 1, 2024). 

15 See, e.g., F.T.C. v. Arch Coal, Inc., 329 F. Supp. 

2d 109, 146 (D.D.C. 2004), case dismissed, No. 04– 

5291, 2004 WL 2066879 (D.C. Cir. Sept. 15, 2004) 

(‘‘An important consideration when analyzing 

possible anticompetitive effects is whether the 

acquisition would result in the elimination of a 

particularly aggressive competitor in a highly 

concentrated market. . . . The loss of a firm that 

does not behave as a maverick is unlikely to lead 

to increased coordination.’’ (citations, ellipses, and 

internal quotation marks omitted); U.S. Dept. of 

Just. & Fed. Trade Comm’n, Horizontal Merger 

Guidelines at section 7.1 (Aug. 19, 2010) (‘‘An 

acquisition eliminating a maverick firm . . . in a 

market vulnerable to coordinated conduct is likely 

to cause adverse coordinated effects.’’). 

16 See, e.g., F.T.C. v. H.J. Heinz Co., 246 F.3d 708, 

724–25 (D.C. Cir. 2001) (‘‘Where rivals are few, 

firms will be able to coordinate their behavior, 

either by overt collusion or implicit understanding, 

in order to restrict output and achieve profits above 

competitive levels. The creation of a durable 

duopoly affords both the opportunity and incentive 

for both firms to coordinate to increase prices.’’ 

(brackets, citations, and internal quotation marks 

omitted)); U.S. Dept. of Just. & Fed. Trade Comm’n, 

Horizontal Merger Guidelines at section 7.1 (Aug. 

19, 2010) (‘‘The Agencies seek to identify how a 

merger might significantly weaken competitive 

incentives through an increase in the strength, 

extent, or likelihood of coordinated conduct.’’). 

17 U.S. Dept. of Just. & Fed. Trade Comm’n, 

Merger Guidelines (Dec. 18, 2023). 

18 Id. at section 2.3. 

19 Id. at section 2.3.A. 

20 See supra note 7. 

21 Id. at section 2.3.B. 

22 The order allows Mr. Hess to consult with 

Chevron as long as his consulting services are 

‘‘solely related to interactions and discussions with 

(a) Guyanese government officials about Hess’s oilrelated and health ministry-related activities in 

Guyana, and (b) the Salk Institute’s Harnessing 

Plants Initiative.’’ Decision & Order, In re Chevron 

Corp., No. 241–0008 at section II.B. (F.T.C. Sept. 26, 

2024). 

23 Id. 

24 See, e.g., Dissenting Statement of 

Commissioner Melissa Holyoak, Joined by 

Commissioner Andrew N. Ferguson, In the Matter 

of the Non-Compete Clause Rule, Matter Number 

P201200 (June 28, 2024), https://www.ftc.gov/ 

system/files/ftc_gov/pdf/2024-6-28-commissionerholyoak-nc.pdf; cf. generally Dissenting Statement 

of Commissioner Melissa Holyoak, Joined by 

Commissioner Andrew Ferguson, Health Breach 

Notification Rule, File No. P205405 (Apr. 26, 2024), 

https://www.ftc.gov/system/files/ftc_gov/pdf/ 

p205405_hbnr_mhstmt_0.pdf. 

25 See, e.g., Exxon Dissent, supra note 7, at 1, 3. 

26 See, e.g., id. at 1, 3 (explaining that ‘‘the 

Commission is leveraging its merger enforcement 

authority to extract a consent from Exxon’’ and that 

‘‘[t]he Commission should not leverage its merger 

enforcement authority—or any authority—the way 

it does today’’). 

Unfortunately for Mr. Hess, the CEO of Hess 

Corporation, the author of every fairy tale 

must also fabricate a villain, and today’s 

action unjustifiably gave him that label. 

To violate section 7 of the Clayton Act, 

Chevron must ‘‘acquire . . . assets . . . 

where . . . the effect of such acquisition may 

be substantially to lessen competition or tend 

to create a monopoly.’’ 9 But the Majority’s 

complaint does not take issue with Chevron’s 

acquisition of Hess Corporation’s assets. Nor 

could it. There is no evidence to suggest 

Chevron, post-merger, could diminish 

competition in the global market for oil. Even 

if one were to accept the Majority’s fetish 

with concentration levels, post-merger 

Chevron would have a low single-digit share 

of the world market for oil and natural gas. 

And the delta in concentration from the 

merger is miniscule. Thus, the tangible and 

intangible assets of Hess Corporation have 

nothing to do with the violation of law—it’s 

all about the acquisition of Mr. Hess. Of 

course, I assume the Majority is not 

endorsing a view that Mr. Hess is an asset or 

transferrable human chattel. Certainly no 

court would endorse such a view—further 

highlighting the farcical nature of today’s 

complaint. 

Even if one were to accept arguendo the 

outlandish antitrust theory of harm the 

Majority puts forward, the facts and 

arguments alleged in the complaint to justify 

the theory are no less ridiculous. Section 7 

requires a ‘‘probable anticompetitive effect’’ 

that is based on ‘‘reasonable probabilit[ies],’’ 

not ‘‘ephemeral possibilities.’’ 10 The 

Majority’s complaint does not reach even 

ephemeral possibilities. And as the Majority 

surely knows, if it were litigated, the 

complaint would not survive a motion to 

dismiss.11 Nothing in the complaint alleges 

that Mr. Hess has ever attempted to, or 

coordinated with, a rival.12 At most, the 

complaint alleges that he was a cheerleader 

for OPEC’s efforts. And yet somehow 

Chevron, despite its low share of the market, 

has violated the law by agreeing to make 

efforts to appoint Mr. Hess as one of 

Chevron’s twelve board members.13 Such a 

theory of coordinated effects is so bizarre that 

no court—or even scholarly work—has 

endorsed it or even discussed it.14

The implausibility of the alleged theory is 

heightened by a few additional observations. 

First, under section 7 the harm must result 

from the merger. But the merger transitions 

Mr. Hess from the role as Chief Executive 

Officer of a company to a role as one of 12 

board members of another company. Premerger, Hess Corporation has an 

infinitesimally small share of the global 

market for oil, and post-merger Chevron will 

still only have low single digits. It strains 

credulity to argue that Mr. Hess will have 

more power or ability to orchestrate 

coordination while serving as one of twelve 

board members than he had while serving as 

a CEO for the last several decades. If 

anything, it seems more plausible that a CEO 

is better equipped to orchestrate coordination 

than the same individual serving as one of 

twelve board members. 

Second, coordinated effects normally 

manifest when one firm buys, and thereby 

removes, a maverick who has undermined 

the ability to coordinate.15 But Mr. Hess is 

the alleged coordinator, not the maverick, 

and his firm is the one being acquired. Thus, 

Chevron’s acquisition does not remove an 

impediment to successful coordination, 

making this situation very different from the 

normal manifestation of merger-specific 

coordinated effects. 

Third, the complaint does not allege that 

the firms in the alleged market will have the 

post-merger incentive to engage in 

coordinated behavior. Focusing merely on an 

individual’s conduct—without allegations 

about the incentives of Chevron and all the 

other firms in the industry—does not amount 

to a plausible pleading of coordinated 

effects.16

An appeal to the Majority’s own 2023 

Merger Guidelines 17 would not provide 

refuge from a motion to dismiss either. 

According to the Guidelines, three primary 

factors are used to ‘‘assess the extent to 

which a merger may increase the likelihood, 

stability, or effectiveness of coordination:’’ 18

(1) highly concentrated market, (2) prior 

actual or attempted attempts to coordinate; 

and (3) elimination of a maverick.19 The 

complaint alleges none of these factors. It 

avoids making allegations of concentration 

because the combined share of the two firms 

in the alleged global market would not 

exceed low single digits, the HHI is very low, 

and the delta is miniscule. Taking the 

allegations and the implications against Mr. 

Hess as true, neither he nor Hess Corporation 

ever coordinated or attempted to coordinate 

with Hess Corporation’s rivals.20 Nor does 

the complaint allege that Hess Corporation is 

a maverick eliminated by the merger. The 

Guidelines also include a list of six 

secondary factors used to assess coordinated 

effects,21 but again, the complaint does not 

rely upon any of them. 

Setting aside the dubious section 7 claim, 

the hypocrisy of the process is apparent from 

the Majority’s express willingness in today’s 

order to allow Mr. Hess to consult with 

Chevron on projects that align with the 

climate agenda of the political left.22 For the 

Majority, Mr. Hess is too dangerous to be 

allowed to participate as a board member or 

generally ‘‘in an advisory or consulting 

capacity.’’ 23 But Mr. Hess ceases to be 

dangerous if his services further climate 

change-related activity. 

Today’s case is the most recent example of 

the Majority’s unfortunate proclivity to 

ignore statutory text to reach politically 

beneficial outcomes.24 And they appear even 

more comfortable when embracing 

indefensible positions in the context of 

settlements 25—knowing very well that the 

substance of their pleadings will never be 

litigated. Today’s approach, which is 

becoming increasingly common, allows the 

Majority to coerce concessions from parties 

without pleading facts that satisfy what the 

statute requires.26 Because so many of the 

Commission’s cases settle without litigation, 

the Majority has the luxury of advancing 


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27 Cf. Dissenting Statement of Commissioner 

William E. Kovacic, In the Matter of Negotiated 

Data Solutions, LLC, File No. 051–0094 (Jan. 23, 

2008) (‘‘The prospect of a settlement can lead one 

to relax the analytical standards that ordinarily 

would discipline the decision to prosecute if the 

litigation of asserted claims was certain or likely.’’), 

https://www.ftc.gov/sites/default/files/documents/ 

cases/2008/01/080122kovacic.pdf. 

28 Compl. ¶ 50, In re Chevron Corp. and Hess 

Corp., FTC File No. 241–0008 (Sept. 26, 2024) 

(‘‘Complaint’’) (citing 15 U.S.C. 18). 

29 See BP Statistical Review of World Energy 

(2023); Chevron 2022 10–K; Hess 2022 10–K. 

30 Dep’t. of Justice & Fed. Trade Comm’n, Merger 

Guidelines, section 2.1 (Dec. 18, 2023); see also 

United States v. Philadelphia Nat’l Bank, 374 U.S. 

321, 364 (1963) (establishing a rebuttable 

presumption that a merger resulting in a single 

firm’s control of at least thirty percent of the 

relevant market violates section 7). 

31 Compl. at ¶ 4. 

32 Id. at ¶ 50. 

33 Ibid. (citing 15 U.S.C. 18). 

34 See, e.g., Letter from U.S. Senator Charles E. 

Schumer, Representative Ro Khanna, et al., to Lina 

Khan, Chair, Fed. Trade Comm’n (Mar. 6, 2024) 

(‘‘We write concerning the wave of oil-and-gas 

consolidation, building on top of a longstanding 

trend, that threatens competition in the industry 

. . . In just the most recent months . . . Chevron 

moved to acquire Hess. Many of us warned in a 

November letter that [this] mega-deal[ ] could 

provoke a wave of mergers and acquisitions in the 

energy sector and trigger a new ‘consolidation 

trend’ to the detriment of industry competition and 

American consumers. . . . We applaud the FTC for 

opening investigations of the . . . Chevron-Hess 

. . . acquisition[ ] . . . [W]e urge the FTC to extend 

its current investigations. . . .’’); Letter from U.S. 

Senator Charles E. Schumer, U.S. Senator Amy 

Klobuchar, et al. to Lina Khan, Chair, Fed. Trade 

Comm’n (Nov. 1, 2023) (‘‘We write regarding our 

concerns about two blockbuster oil-and-gas deals 

announced in October: ExxonMobil’s (Exxon) 

proposed $60 billion acquisition of Pioneer Natural 

Resources (Pioneer) and Chevron’s proposed $53 

billion acquisition of Hess Corporation (Hess)—two 

of the largest oil-and-gas deals of the 21st century. 

By allowing Exxon and Chevron to further integrate 

their extensive operations into important oil-andgas fields, these deals are likely to harm 

competition, risking increased consumer prices and 

reduced output throughout the United States.’’). 

35 Section 7 is a forward-looking statute, intended 

to prevent future harm to competition, not punish 

past conduct. See United States v. Baker Hughes 

Inc., 908 F.2d 981, 991 (D.C. Cir. 1990) (Thomas, 

J.) (‘‘By focusing on the future, section 7 gives a 

court the uncertain task of assessing probabilities’’); 

Deborah Feinstein, then-FTC Director of the Bureau 

of Competition, The Forward-Looking Nature of 

Merger Analysis, Advanced Antitrust U.S., 3 (2014) 

(‘‘In markets, the past is not always prologue. For 

example, the Commission recently closed its 

investigation of the Office Depot/OfficeMax 

transaction without action, 17 years after obtaining 

an injunction to block the Staples/Office Depot 

combination.’’). 

36 In re Domestic Airline Travel Antitrust Litig., 

691 F. Supp. 3d 175, 219 (D.D.C. 2023) (finding that 

defendant airlines’ statements regarding restrained 

output could support inference of a conspiracy 

violating the Sherman Act). 

37 Compl., Rosenbaum v. Permian Res. Corp., No. 

2:24–cv–00103 (D. Nev. 2024); Compl., Mellor v. 

Permian Res. Corp., No. 2:24–cv–00253 (D. Nev. 

2024). The United States Judicial Panel on 

Multidistrict Litigation consolidated these two 

lawsuits with three others and transferred them to 

the District of New Mexico. See Transfer Order, In 

re: Shale Oil Antitrust Litig., MDL No. 3310 (Aug. 

1, 2024). The parties also ‘‘informed the Panel of 

eleven potentially-related actions pending in four 

districts.’’ Id. 

38 Compl., Rosenbaum v. Permian Res. Corp., No. 

2:24–cv–00103, ¶ 104 (D. Nev. 2024) (‘‘the 

supermajors started investing in shale in 2021 and 

2022 at rates previously unseen, in direct response 

to U.S. shale producers underinvesting as an 

industry . . . Mid way through 2022, Chevron 

anticipated a ‘15% year-over-year increase’ in shale 

oil production from 2021 and promised to continue 

‘bolstering production’ ’’). 

39 15 U.S.C. 18. 

40 Compl. at ¶ 50. 

unsound legal theories below the radar.27

However the Majority wants to move the law, 

it cannot do so by manufacturing change 

through some fictitious body of extracted 

settlements. 

Dissenting Statement of Commissioner 

Andrew N. Ferguson 

The Commission today authorizes the 

filing of an administrative complaint and 

proposed decision and order against Chevron 

Corporation and Hess Corporation. The 

Complaint alleges that Chevron’s proposed 

$53 billion acquisition of Hess Corporation 

would violate section 7 of the Clayton Act.28

The Complaint does not plead a traditional 

section 7 theory because the Commission has 

none. Chevron and Hess together have a two 

percent share of the relevant market.29 No 

court has ever blocked a merger between 

companies with such small shares. The 

aggressive new Merger Guidelines presume 

that a merger would harm competition when 

it combines companies with market shares of 

over thirty percent.30 A two percent market 

share does not raise any competitive 

concerns at all. 

The Complaint instead alleges that adding 

John Hess—Hess Corporation’s CEO—to 

Chevron’s twelve-member board of directors 

turns an unobjectionable merger into a 

section 7 violation. The Commission’s 

Complaint alleges that while serving as Hess 

Corporation’s CEO, Mr. Hess ‘‘communicated 

publicly and privately with OPEC 

representatives . . . about global output and 

other dimensions of crude oil market 

competition.’’ 31 This conduct, the 

Commission suggests, is dangerous to 

competition. The Commission then contends 

that Mr. Hess’s position on Chevron’s board 

would give him even more power to harm 

competition in global oil markets than he 

currently wields as Hess Corporation’s CEO 

and as a member of its board.32 This increase 

in power, the Commission claims, would 

‘‘substantially lessen competition, or tend to 

create a monopoly’’ in the global market for 

crude oil.33 Because the increase in power is 

a function of Chevron’s acquisition of Hess 

Corporation, the Commission reasons that the 

acquisition therefore violates section 7 of the 

Clayton Act. 

The Commission’s section 7 theory does 

not hold water. It rests on a series of 

implausible and unsupported assumptions 

that fall well short of pleading a violation of 

the Clayton Act. But it does satisfy a 

constituency important to the Commission 

majority—Democratic politicians who have 

repeatedly and publicly urged the 

Commission to block this merger in order to 

advance their climate agenda.34 Bending 

section 7 to political pressure is incompatible 

with the rule of law. I therefore dissent from 

the filing of the Complaint. 

First, the majority necessarily assumes that 

Mr. Hess would continue his 

communications with OPEC representatives 

after joining Chevron’s board. If that were not 

the case, then the transaction would be at 

worst competitively neutral or even procompetitive insofar that Mr. Hess’s previous 

communications were injurious to 

competition.35 This assumption is utterly 

implausible. Discussing output with 

representatives of Hess Corporation’s 

competitors at OPEC is obviously risky.36 Mr. 

Hess’s past communications with OPEC 

officials have landed him and Hess 

Corporation in hot water. The statements to 

which the majority objects attracted the 

attention of government regulators and 

formed the basis of several private classaction lawsuits pending against Hess 

Corporation.37 It is unreasonable to assume 

that Mr. Hess would continue his OPEC 

discussions unabated in light of the 

consequences those statements have 

generated. 

Even if Mr. Hess could not appreciate the 

risk of discussing output with OPEC officials, 

Chevron has a strong incentive to ensure that 

its officers and directors avoid risky 

conversations with OPEC representatives. 

The Complaint does not allege that any 

current Chevron officer or director had any 

potentially unlawful discussions with OPEC 

officials. In fact, one private lawsuit against 

Hess Corporation specifically alleges that 

Chevron rejected OPEC’s calls for 

constrained output in favor of increased 

production.38 But for the proposed order, Mr. 

Hess would become a director of Chevron. He 

would then be subject to Chevron’s direction, 

and Chevron’s incentive to prevent its 

officers and directors from cavorting with 

OPEC officials would apply to Mr. Hess. The 

Commission’s assumption that Mr. Hess’s 

behavior as a Chevron board member would 

be identical to his behavior as Hess 

Corporation’s CEO is not only implausible; 

the only plausible inference is precisely the 

opposite. 

Second, the majority must also assume that 

Mr. Hess’s post-merger behavior would have 

a sufficiently major effect on global oil 

markets ‘‘substantially to lessen competition 

or tend to create a monopoly.’’ 39 No other 

aspect of this transaction poses any risk at all 

of substantially lessening competition or 

tending to create a monopoly. The 

Commission’s entire theory rests on a 

prediction about the competitive effects of 

Mr. Hess’s conduct. 

The proposition that Mr. Hess’s comments 

could move global oil markets is laughable. 

The Complaint does not allege that Mr. Hess 

encouraged other U.S. producers to reduce 

output. Instead, the Complaint’s primary 

theory of harm is that ‘‘Mr. Hess’s supportive 

messaging to OPEC encourages OPEC’s 

output stabilizing agenda, and . . . reduces 

the unpredictability of the non-OPEC 

response to OPEC’s output decisions.’’ 40 The 


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41 See Org. of the Petroleum Exporting Countries, 

OPEC: Our Mission (‘‘In accordance with its 

Statute, the mission of the Organization of the 

Petroleum Exporting Countries (OPEC) is to 

coordinate and unify the petroleum policies of its 

Member Countries and ensure the stabilization of 

oil markets . . .’’). 

42 See Dep’t. of Justice & Fed. Trade Comm’n, 

Merger Guidelines, section 2.3 (Dec. 18, 2023) 

(‘‘Guideline 3: Mergers Can Violate the Law When 

They Increase the Risk of Coordination’’) (emphasis 

added). 

43 Compl. at ¶ 50. 

44 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007) (requiring that a complaint plead 

‘‘enough facts to state a claim to relief that is 

plausible on its face.’’). 

45 Compl. at ¶ 11. 

46 See, e.g., Fitch Maintains Rating Watch 

Positive on Hess’ ‘BBB’ Ratings, Fitch Ratings, Inc., 

(Aug. 21, 2024) (‘‘Hess’ growth profile differentiates 

it from most exploration and production (E&P) 

peers’’); Sourasis Bose and Sabrina Valle, Oil 

producer Hess beats profit estimates on U.S. 

production boost, Reuters (July 26, 2023). 

47 Whether Mr. Hess’s alleged conduct violated 

some other antitrust law or, any other Federal law, 

is not at issue in this case and I therefore take no 

position on that question. 

48 15 U.S.C. 18. 

49 Compl., In re Exxon Mobil Corp., FTC File No. 

241 0004 (May 2, 2024). 

50 See Joint Dissenting Statement of Melissa 

Holyoak, Comm’r, Fed. Trade Comm’n, and Andrew 

N. Ferguson Comm’r, Fed. Trade Comm’n, In re 

ExxonMobil Corp., FTC Matter No. 241 0004 (May 

1, 2024). 

51 See Concurring Statement of Andrew N. 

Ferguson, Comm’r, Fed. Trade Comm’n, In re 

Asbury Automotive Group, Inc., et al., FTC Matter 

No. 222 3135, 2 (Aug. 16, 2024) (‘‘In re Asbury’’); 

see also Concurring and Dissenting Statement of 

Andrew N. Ferguson, Comm’r, Fed. Trade Comm’n, 

In re Invitation Homes, FTC Docket No. 9436, 5 

(Sep. 16, 2024). 

52 See Joint Dissenting Statement of Melissa 

Holyoak, Comm’r, Fed. Trade Comm’n, and Andrew 

N. Ferguson, Comm’r, Fed. Trade Comm’n, In re 

ExxonMobil Corp., FTC Matter No. 241 0004 (May 

1, 2024). 

53 See In re Asbury, supra note 24, at 2 

(‘‘[U]nadjudicated complaints are not the law. A 

complaint is an accusation, nothing more. It is 

subject neither to adversarial testing—the defining 

feature of the American legal tradition—nor to 

adjudication by the Commission or an impartial 

Article III judge.’’). 

54 See id. at 3 (‘‘[M]any firms settle even if they 

honestly believe that they did nothing wrong and 

that they would prevail in litigation. Those firms 

reasonably conclude that a swift end to the 

Commission’s investigation or threatened 

enforcement advances their interests more than a 

litigation victory.’’). 

55 15 U.S.C. 18a. 

Complaint does not allege that Mr. Hess ever 

discussed non-public information with 

OPEC. Yet it suggests that the international 

oil cartel hangs on his every word, and his 

musings and suggestions spur national 

governments to action. Mr. Hess should be 

flattered that the Commission thinks so much 

of his influence. But I do not share my 

colleagues’ view about the reach of Mr. 

Hess’s powers. OPEC’s raison d’etre for 

decades has been to manage output and raise 

crude oil prices to maximize its member 

nations’ monopoly rents.41 OPEC does not 

need the encouragement of the CEO of a 

midsized American producer to pursue its 

cartel goals. 

Third, even if the Commission were correct 

that Mr. Hess’s conduct would continue 

unabated as a Chevron director and that the 

conduct substantially affects competition, the 

majority does not state a section 7 claim 

unless it can show that Mr. Hess’s addition 

to the Chevron board would injure 

competition more than if he were to remain 

Hess Corporation’s CEO. If his addition to the 

Chevron board is no more dangerous to 

competition than his service as Hess 

Corporation’s CEO, then the transaction 

poses no competitive risks.42 The Complaint 

proposes two theories for why his addition 

to the Chevron board is worse than the status 

quo. Both fail. 

The Commission first argues that because 

Chevron is larger than Hess Corporation, Mr. 

Hess’s position on Chevron’s board would 

‘‘amplify the importance and likely effect’’ of 

his statements on OPEC.43 This statement is 

pure ipse dixit. No allegations in the 

Complaint lend that allegation any 

plausibility.44 And common sense suggests 

otherwise. The CEO of an oil producer 

directs the daily operations of the company. 

He exercises far more control over the 

company on a daily basis—including on 

pricing and output decisions—than one 

member of a twelve-person board of 

directors. The statements of an oil-company 

CEO would therefore likely carry much 

greater weight than the same statements 

made by one of twelve oil-company directors. 

The Complaint contains nothing suggesting 

that the opposite is true. 

The Complaint also contends that Mr. 

Hess’s service on Chevron’s board would 

‘‘meaningfully increas[e] the likelihood that 

Chevron would align its production with 

OPEC’s output decisions to maintain higher 

prices.’’ 45 But this allegation too is 

conclusory ipse dixit. Nothing in the 

Complaint explains how this would happen. 

For example, the Complaint does not allege 

that Mr. Hess’s communications with OPEC 

officials had any effect on Hess Corporation’s 

capital plans, output decisions, or any other 

behavior by the company. Indeed, under his 

leadership, Hess Corporation’s production 

growth routinely exceeded that of peer 

companies.46 If Mr. Hess as CEO, did not 

curtail Hess Corporation’s output in response 

to conversations with OPEC, it beggars belief 

that he could, and would, do so as one of the 

twelve members of Chevron’s board. 

But even if the Commission’s assumptions 

were all correct—and they are not—the 

Commission still fails to state a section 7 

violation. Even if Chevron were, at Mr. Hess’s 

instigation, to reduce its output, the 

Complaint does not explain how that output 

would meaningfully affect competition. The 

combined Chevron-Hess Corporation entity 

will control two percent of the global oil 

market. A reduction in its output would 

hardly remove a drop from the metaphorical 

bucket. 

That is not to say that I favor Mr. Hess’s 

alleged conduct. (I emphasize that the 

conduct is merely alleged; the Commission 

has not proven anything.) OPEC is not a 

friend to the American people. Just ask any 

American who lived through 1973. OPEC’s 

goal is to keep oil prices high to extract 

monopoly rents from every consumer of 

petroleum products on the planet—including 

every single American. OPEC’s member 

states include some of America’s bitterest 

foes. I am not fond of the idea that American 

oil executives would share encouraging 

messages with an organization that includes 

America’s enemies, the goal of which is to 

keep our oil prices high. But section 7 does 

not forbid disquieting conduct.47 It forbids 

transactions ‘‘the effect’’ of which ‘‘may be 

substantially to lessen competition, or to tend 

to create a monopoly.’’ 48 Nothing in the 

Commission’s Complaint suggests that this 

transaction will have such an effect. The 

Commission should not twist section 7 into 

knots to get at Mr. Hess’s alleged conduct. 

Neither judicial nor Commission precedent 

supports the Complaint’s theory of section 7. 

The only time we have ever posited this sort 

of theory before was in a recent unlitigated 

settlement complaint involving the merger of 

Exxon Corporation and Pioneer Natural 

Resources Company.49 And we did so over 

my dissent.50 I cannot imagine that the 

majority Commission would ever risk 

litigating a section 7 claim involving two 

percent shares of the market simply because 

of one potential director’s speeches and texts. 

I therefore doubt that the Commission will 

ever risk letting the courts review the 

interpretation of section 7 embodied in 

today’s Complaint. 

It is not a coincidence that the Commission 

has trotted out this theory only in 

settlements. I have lamented repeatedly that 

the majority has a penchant for pressing farfetched, novel theories in complaints it 

knows will not be litigated, and relying on 

those unadjudicated complaints as a form of 

precedent for subsequent Commission 

action.51 No court should give this consent, 

or its equally lawless predecessor in ExxonPioneer, any precedential value.52

Unadjudicated complaints tell us nothing 

about the law. This Complaint is an 

accusation leveled by three Commissioners, 

nothing more.53

One might wonder why I object to a 

complaint that the merging parties are 

voluntarily settling. The Complaint is the 

Commission’s statement of what section 7 

means. I believe that statement to be woefully 

incorrect and therefore cannot join it. And 

the fact of settlement should lend no 

credibility to the majority’s outlandish 

interpretation of section 7. Parties settle civil 

cases when it suits their interests even if they 

would prevail in litigation.54 This consent 

agreement is a stark example. The 

Commission leveraged its Hart-Scott-Rodino 

Act 55 authority by threatening to hold up 

Chevron and Hess’s $53 billion dollar merger 

even though the lack of a plausible section 

7 theory had long been obvious. And yes, the 

parties could have told the Commission to 

make their day and file a lawsuit. But that 

lawsuit would cause months of delay and 

cost countless millions of dollars in legal 

fees. The merging parties surely would have 

prevailed on this section 7 claim, but the 

victory could very well have been Pyrrhic if 

market conditions changed in the intervening 

months. They therefore rationally took the 

quick and easy path opened to them by this 

consent agreement. For Hess Corporation’s 


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56 See supra note 7. 

57 See Douglas Farrar, X, (Sept. 13, 2024), https:// 

x.com/DouglasLFarrar/status/ 

1834727643171733651 (‘‘FTC Chair Khan has won 

more than 90% of her lawsuits’’) (quoting remarks 

of Rep. Alexandria Ocasio-Cortez). 

58 In re Asbury, supra note 24, at 3. 

59 Id. at 4 (‘‘That a firm may break this cycle by 

litigating is no answer to my objection. For most 

small businesses—and many large ones—a 

Commission investigation is costly. Lawyers are 

expensive, and investigations sometimes last for 

years. Litigation may take many years more. The 

mere risk of a Commission investigation is coercive 

and can be enough to force some businesses to 

yield.’’). 

60 See Joint Dissenting Statement of Melissa 

Holyoak, Comm’r, Fed. Trade Comm’n, and Andrew 

N. Ferguson, Comm’r, Fed. Trade Comm’n, In re 

ExxonMobil Corp., FTC Matter No. 241 0004 (May 

1, 2024). 

shareholders, the consent is all upside: with 

the merger cleared, they will soon get paid. 

And for Chevron’s shareholders, the benefit 

is clear and the cost is minimal: a valuable 

asset in exchange for keeping one person off 

of the board of directors. 

The Commission majority and the 

Democratic politicians who urged them on 

will hail today’s Complaint and proposed 

order as a victory. Those politicians have 

loudly urged the Commission to block this 

merger, and today the Commission majority 

can pretend it delivered, even as it allows the 

merger to proceed.56 Fawning press coverage 

will surely follow—a nice bonus for the 

Democrats as voters head to the polls to pick 

the next President. The American public 

rightly loathes OPEC and has little affection 

for its perceived friends. Few apart from 

seasoned antitrust practitioners will look 

under the hood of the Commission’s antitrust 

theory. The Commission will tout this 

modest, coerced settlement as a ‘‘win’’ and 

add it to the list of ‘‘wins’’ it uses to calculate 

a supposed ‘‘90% win rate.’’ 57

But this settlement is not a victory for the 

rule of law. ‘‘A settlement extracted from an 

innocent party reveals much about the 

Commission’s power, but nothing about the 

law.’’ 58 The Commission’s power under the 

Hart-Scott-Rodino Act is considerable and 

coercive. We do not approve or forbid 

mergers, but we may sue to block them. 

Lawsuits are expensive and time-consuming, 

and the mere risk of an enforcement action 

can make an otherwise valuable transaction 

too costly to pursue.59 Our gatekeeping 

function therefore gives us the power to exact 

tolls on merging parties even if our legal 

theory is bunk.60 The risk, time, and expense 

associated with convincing a judge that the 

Commission’s theory is bunk is coercive 

enough that merging parties will pay for the 

Commission to go away. But such a 

settlement does not vindicate the rule of law. 

It is instead a sort of tax on mergers made 

possible by the fact that Congress has made 

the Commission a merger gatekeeper. 

Today, two merging companies pay a toll 

to pass through the Hart-Scott-Rodino gate. 

They do not pay the toll because section 7 

requires it. Nothing in section 7 requires Mr. 

Hess to stay off the Chevron board. They pay 

the toll because the Commission has 

threatened to make their lives difficult if they 

do not, and they have concluded that it is 

easier to pay than to resist. The Commission 

collects the toll and proclaims victory. But 

reducing antitrust enforcement to a pay-forpeace racket inflicts serious injury on the 

rule of law—and on the Commission’s 

credibility. 

I therefore respectfully dissent. 

[FR Doc. 2024–22874 Filed 10–2–24; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 232 3052] 

Rytr LLC; Analysis of Proposed 

Consent Order To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

Federal law prohibiting unfair or 

deceptive acts or practices. The attached 

Analysis of Proposed Consent Order to 

Aid Public Comment describes both the 

allegations in the complaint and the 

terms of the consent order—embodied 

in the consent agreement—that would 

settle these allegations. 

DATES: Comments must be received on 

or before November 4, 2024. 

ADDRESSES: Interested parties may file 

comments online or on paper by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Please write ‘‘Rytr LLC; File No. 

232 3052’’ on your comment and file 

your comment online at https://

www.regulations.gov by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, please mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Mail 

Stop H–144 (Annex R), Washington, DC 

20580. 

FOR FURTHER INFORMATION CONTACT: 

Division of Advertising Practices, 

Bureau of Consumer Protection, Federal 

Trade Commission, 600 Pennsylvania 

Avenue NW, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule § 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of 30 days. The following Analysis to 

Aid Public Comment describes the 

terms of the consent agreement and the 

allegations in the complaint. An 

electronic copy of the full text of the 

consent agreement package can be 

obtained at https://www.ftc.gov/newsevents/commission-actions. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before November 4, 2024. Write ‘‘Rytr 

LLC; File No. 232 3052’’ on your 

comment. Your comment—including 

your name and your State—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the https://

www.regulations.gov website. 

Because of heightened security 

screening, postal mail addressed to the 

Commission will be subject to delay. We 

strongly encourage you to submit your 

comments online through the https://

www.regulations.gov website. If you 

prefer to file your comment on paper, 

write ‘‘Rytr LLC; File No. 232 3052’’ on 

your comment and on the envelope, and 

mail your comment to the following 

address: Federal Trade Commission, 

Office of the Secretary, 600 

Pennsylvania Avenue NW, Mail Stop 

H–144 (Annex R), Washington, DC 

20580. 

Because your comment will be placed 

on the publicly accessible website at 

https://www.regulations.gov, you are 

solely responsible for making sure your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include sensitive personal information, 

such as your or anyone else’s Social 

Security number; date of birth; driver’s 

license number or other State 

identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure your 

comment does not include sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, your comment should not 

include any ‘‘trade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided by section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule § 4.10(a)(2), 16 CFR 

4.10(a)(2)—including competitively 

sensitive information such as costs, 

sales statistics, inventories, formulas, 

patterns, devices, manufacturing 

processes, or customer names. 

Comments containing material for 

which confidential treatment is 

requested must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’ 

and must comply with FTC Rule 

§ 4.9(c). In particular, the written 

request for confidential treatment that 


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