NetChoice recently submitted comments to the Federal Trade Commission and the Department of Justice, urging them to establish clear antitrust guidance for businesses collaborating with competitors. Since the withdrawal of the 2000 Guidelines, businesses—especially smaller firms—have struggled with an uncertain regulatory landscape that functionally acts as a tax on participation and stifles innovation. In the filing, NetChoice emphasizes that regulatory certainty actively enhances competition, and that pro-consumer collaborations like joint research, shared infrastructure or cybersecurity information sharing should be protected under a strong consumer-welfare standard. To help businesses confidently invest and innovate, NetChoice recommends that the Agencies adopt clear “safety zones” across five key areas: research and development, joint ventures, standard setting, vertical collaborations and trade association activities.
NetChoice Comments for the Record for the Joint Public Inquiry on Potential Additional Guidance Regarding Collaboration Among Competitors Federal Trade Commission and U.S. Department of Justice Docket ID: ATR-2026-0001-0001
May 21, 2026
Comments of NetChoice:
NetChoice respectfully submits these comments in response to the joint public inquiry by the Federal Trade Commission and the U.S. Department of Justice, Antitrust Division (together, the Agencies), announced on February 23, 2026, concerning potential guidance on collaborations among competitors. NetChoice is a trade association of leading internet businesses that share the goal of promoting free enterprise and free expression online.
The withdrawal of the 2000 Antitrust Guidelines for Collaborations Among Competitors in December 2024 left a significant guidance gap. Businesses, particularly small and mid-sized firms that cannot maintain large in-house compliance departments, have since been forced to navigate an uncertain enforcement landscape when evaluating pro-consumer collaborations. We commend the Agencies for reopening this inquiry and for recognizing, as Acting Assistant Attorney General Assefi has noted, “Procompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment” (Federal Trade Commission, Federal Trade Commission and Department of Justice Seek Public Comment for Guidance on Business Collaborations (Feb. 23, 2026) https://bit.ly/4tHoLle). New guidance can restore the predictability that businesses need to invest, innovate and deliver consumer benefits.
These comments are organized around two overarching principles leading to five specific recommendations. The overarching propositions are:
- Regulatory certainty enhances competition, especially by lowering compliance costs that disproportionately burden smaller firms; and
- Many competitor collaborations enhance consumer welfare, which remains the paramount consideration under longstanding antitrust law.
The five recommendations urge the Agencies to issue safety zones or clarifying language addressing:
- Research and development collaborations;
- Joint ventures involving shared infrastructure, marketing or procurement, aimed at driving innovation and expanding production;
- Standard setting and information sharing for safety, cybersecurity, anti-fraud and supply-chain resilience purposes;
- Vertical collaborations; and
- Trade association activities.
Principles
Regulatory Certainty Enhances Competition and Disproportionately Benefits Smaller Firms
Clear, predictable antitrust guidance is itself a procompetitive policy instrument. When firms can identify ex ante which collaborations fall comfortably outside enforcement scrutiny, they devote resources to creating value rather than to defensive legal review. When that clarity is absent, the resulting compliance burden does not fall evenly. Large incumbents can absorb the cost of sophisticated antitrust counsel, economists on retainer and protracted investigations. Small and mid-sized firms cannot. For these firms, ambiguity is functionally a tax on participation.
The 2000 Guidelines, whatever their analytical limitations, provided millions of businesses with a workable framework for self-assessment. The market-share safety zone in particular gave smaller firms confidence that ordinary-course collaborations with industry peers would not trigger enforcement. The withdrawal of that framework, without simultaneous replacement, exposed precisely the firms least equipped to absorb the resulting uncertainty.
We urge the Agencies to internalize a simple proposition: every additional unit of ambiguity in collaboration guidance is, in practical effect, a competitive advantage conferred on the largest market participants. The corollary is that restored, modernized guidance is itself a competition policy that lowers entry and expansion costs for challengers. We therefore encourage the Agencies to view the cost-of-uncertainty question not as a peripheral consideration in drafting but as a central design constraint.
Concretely, regulatory certainty in collaboration guidance produces three measurable benefits. First, it reduces transactional friction in pro-competitive joint activity, accelerating innovation and consumer-facing improvements. Second, it permits smaller firms to participate in joint research, standard-setting bodies and shared infrastructure on terms comparable to larger competitors, narrowing rather than widening competitive asymmetries. Third, it conserves Agency resources by enabling firms to self-assess routine matters, freeing enforcement capacity for the conduct that genuinely warrants scrutiny.
Many Collaborations Enhance Consumer Welfare, the Paramount Consideration
Consumer welfare has been a guiding principle of American antitrust law for more than four decades, and it should remain so. The Supreme Court has emphasized that the Sherman Act was enacted as a consumer welfare prescription, and the federal courts continue to evaluate joint conduct under that framework. New guidance should make clear that, where a collaboration produces lower prices, higher output, improved quality, faster innovation, expanded access or other cognizable consumer benefits, those efficiencies are not merely permissible defenses but are central to the substantive analysis.
Joint research and development arrangements have produced essential pharmaceuticals, telecommunications standards, payment systems and core internet protocols that no single firm could have delivered alone. Joint ventures in capital-intensive infrastructure have made possible energy grids, semiconductor fabrication, broadband deployment and cloud computing capacity. Information-sharing arrangements have enabled coordinated responses to cybersecurity threats, financial fraud and supply-chain disruptions that would have caused far greater consumer harm absent collective action. These benefits are not theoretical; they are visible in every sector of the modern economy.
Guidance that loses sight of consumer welfare risks chilling exactly the conduct that produces these benefits. We are concerned that recent enforcement rhetoric in some quarters has gestured at non-consumer-welfare objectives, including the protection of competitors as such or the pursuit of broader social goals through antitrust law. Whatever the merit of those objectives as policy matters, they are not the appropriate substantive standard under the Sherman Act and the FTC Act, and they cannot be substituted for the consumer-welfare framework. New guidance should reaffirm the consumer-welfare standard explicitly and apply it consistently across the categories of collaboration addressed below.
We also encourage the Agencies to define consumer welfare with appropriate breadth. Lower prices are the most readily quantifiable benefit, but they are not the only one. Output expansion, quality improvements, new product introduction, accelerated innovation cycles, network effects that generate genuine consumer value and improvements in safety and reliability all qualify. Guidance that recognizes the full range of cognizable efficiencies will better track the realities of modern collaboration than guidance that focuses narrowly on short-run price effects.
Recommended Safety Zones and Clarifying Language
We respectfully recommend that the Agencies adopt safety zones or substantive clarifying language in the five areas described below. Safety zones need not, and should not, be absolute immunities. They should identify categories of conduct that the Agencies will ordinarily decline to challenge absent evidence of anticompetitive effect. This structure preserves enforcement flexibility for genuinely problematic conduct while delivering meaningful predictability to the overwhelming majority of pro-competitive activity.
1. Research and Development Collaborations
Research and development collaborations are among the most clearly procompetitive forms of joint activity. They allow firms to pool complementary expertise, share the substantial fixed costs of basic research, reduce duplicative investment and accelerate the development of technologies that benefit consumers. The 2000 Guidelines recognized this and treated R&D collaborations favorably; the National Cooperative Research and Production Act reflects a parallel congressional judgment. We recommend that the new guidance reaffirm and strengthen this treatment.
Specifically, we recommend a safety zone for R&D collaborations under which the Agencies will ordinarily decline to challenge an arrangement that meets the following conditions: the collaboration is limited to genuine research and development activities, including pre-competitive joint research, joint development of new products or processes and the licensing of resulting intellectual property; the collaboration does not include agreements on the price, output or commercialization terms of the participants’ existing products outside the scope of the joint research; the collaboration leaves participants free to conduct independent R&D in the same field; and reasonable safeguards are in place to limit the exchange of competitively sensitive information beyond what is necessary for the joint research.
We also urge the Agencies to extend favorable treatment to R&D collaborations in emerging technology areas, including artificial intelligence safety research, quantum computing, advanced semiconductors and biotechnology. These fields share two features that make collaboration particularly valuable: the underlying research is extraordinarily capital-intensive, and the public benefits of accelerated progress are correspondingly large. Guidance that recognizes these features expressly will encourage productive collaboration without creating opportunities for the disguised cartelization that the antitrust laws properly prohibit.
2. Joint Ventures on Infrastructure, Marketing and Procurement Aimed at Driving Innovation and Expanding Production
Joint ventures occupy a special place in competition policy. Whether organized around shared infrastructure, joint marketing and distribution or joint procurement, these arrangements routinely enable firms to undertake activity that would be impractical, uneconomic or impossible on a standalone basis. The unifying theme is that such ventures drive innovation and expand production. They aggregate complementary capabilities and capital to bring new products to market faster, scale productive capacity beyond what any participant could achieve alone, lower input costs that ultimately reach consumers and enable services in markets that would otherwise be underserved. Each of the three principal forms warrants explicit treatment in the new guidance.
First, infrastructure joint ventures aggregate participants’ capital and expertise to build, expand or operate facilities that no single firm could efficiently provide alone. Data centers, fiber and wireless networks, satellite constellations, energy transmission systems and semiconductor fabrication facilities all routinely depend on this form of cooperation. By making such investments feasible, infrastructure joint ventures expand productive capacity and frequently intensify competition in downstream markets that rely on access to the shared facility. The new guidance should make clear that such ventures are presumptively procompetitive where access is available on reasonable terms and the participants do not extend their cooperation to the price, output or commercial terms of their independent downstream products.
Second, joint marketing and distribution ventures likewise frequently drive innovation and expand production. Smaller and mid-sized firms in particular often lack the resources to reach national or international consumers on their own; joint marketing arrangements, cooperative distribution networks and shared sales channels allow them to compete with larger incumbents and to bring new products to consumers who would not otherwise have access. Joint advertising and promotional activities that explain a new category, technology or standard to consumers can be particularly valuable, generating informational benefits that no participant would invest in unilaterally. Guidance should recognize that such ventures are ordinarily lawful where the marketing collaboration is reasonably necessary to achieve the joint activity’s legitimate purposes and does not function as a vehicle for coordination on the price or output of participants’ independent products.
Third, joint procurement arrangements–group purchasing organizations and cooperative procurement ventures have long enabled hospitals, independent retailers, farmers, manufacturers and small businesses to obtain inputs at prices and on terms otherwise available only to the largest buyers. The savings these arrangements generate are typically passed through to consumers in the form of lower prices, and the resulting cost reductions free capital for investment in new products and expanded production. Joint procurement also enables participants to specify and obtain inputs that no individual buyer would have sufficient volume to commission, accelerating supplier innovation. Such collaboration can bolster supply-chain resilience as well. The new guidance should provide a safety zone for joint procurement arrangements where the participants do not collectively purchase a share of the relevant input market sufficient to confer monopsony power, participation is voluntary and the venture is not used as a forum for coordinating downstream prices or output.
Across all three categories, we recommend that the new guidance adopt a unified safety zone for joint ventures that satisfy the following conditions: the venture is directed at activity that drives innovation, expands production or otherwise enables participants to achieve efficiencies they could not efficiently realize individually; the integration of participants is genuine, with meaningful sharing of investment, risk and operational responsibility; the venture does not extend to coordination on the price, output or commercial terms of participants’ independent products outside the scope of the joint activity; and reasonable safeguards, including appropriate firewalls, limit the spillover of competitively sensitive information beyond what is necessary to operate the venture.
Guidance should also clarify that joint ventures involving partial overlap among participants in downstream markets are not for that reason alone problematic. The relevant question is whether the venture, viewed as a whole, expands productive capacity, lowers costs, accelerates innovation or enables services that would not otherwise exist. Where it does, the existence of competitive overlap among participants typically does not change the procompetitive character of the underlying arrangement, provided that the safeguards described above are in place.
3. Standard Setting and Information Sharing for Safety, Cybersecurity, Anti-Fraud and Supply-Chain Purposes
Standard-setting activities and targeted information-sharing arrangements serve critical functions that cannot easily be replicated through unilateral conduct. Industry-developed standards reduce consumer search costs, enable interoperability and lower the price of complementary products. The Universal Commerce Protocol (UCP) demonstrates such a standard. The UCP is an open-source standard designed to power “agentic commerce,” a new era of digital shopping where AI agents can autonomously discover products, build carts and complete purchases on behalf of users (Vidhya Srinivasan, “New tech and tools for retailers to succeed in an agentic shopping era,” The Keyword (blog), Google, January 11, 2026, https://blog.google/products/ads-commerce/agentic-commerce-ai-tools-protocol-retailers-platforms/). Developed by Google in collaboration with major industry leaders like Shopify, Walmart, Etsy and Stripe, UCP addresses the highly fragmented landscape of online retail. Currently, different stores, apps and payment systems organize their data and checkout processes differently, which requires slow and expensive custom integrations for them to connect. UCP solves this by establishing a common technical language and set of functional primitives across the entire commerce ecosystem. UCP has recently expanded to 32 partners, including Amazon, Meta, Visa, Mastercard, Best Buy, Lowe’s and Home Depot (Vidhya Srinivasan, “Introducing the Universal Cart and more ways to help you shop,” The Keyword (blog), Google, May 19, 2026, https://blog.google/products-and-platforms/products/shopping/google-shopping-cart/).
Further, coordinated information sharing among firms is, in many contexts, the only practical means of identifying and responding to evolving threats. We strongly urge the Agencies to issue guidance that supports legitimate activity in these areas while preserving enforcement against the genuinely anticompetitive misuse of standard-setting and information-sharing forums.
Cybersecurity is a paradigmatic example. Sophisticated cyber threat actors operate across firms and sectors, and effective defense requires that targeted firms share threat indicators, attack signatures and mitigation techniques in near real time. Existing statutory frameworks, including the Cybersecurity Information Sharing Act (6 U.S.C. §§ 1501 et seq.), reflect a congressional judgment that such sharing should be encouraged. New antitrust guidance should reinforce that judgment by making clear that information sharing limited to cybersecurity threats, indicators and defensive measures will not be challenged where it is not used as a cover for coordination on competitively sensitive variables.
The same logic applies to anti-fraud collaboration. Financial fraud, identity theft and payment-system abuse impose substantial costs on consumers and depend critically on the ability of bad actors to migrate between firms. A recent example of this kind of collaborative vigilance in combating online harms is Google’s SynthID. Developed by Google DeepMind, this technology embeds imperceptible, highly durable digital watermarks directly into AI-generated text, audio, images and video. By actively partnering with major AI developers like OpenAI, Kakao, ElevenLabs and Nvidia, and working in tandem with open metadata protocols like C2PA, SynthID is fostering a collaborative, multi-layered ecosystem that helps platforms across the internet reliably identify synthetic content and build public trust (Laurie Richardson and Pushmeet Kohli, “Making it easier to understand how content was created and edited,” The Keyword (blog), Google, May 19, 2026, https://blog.google/innovation-and-ai/products/identifying-ai-generated-media-online/).
Coordinated sharing of fraud indicators, suspect-account information and emerging fraud typologies among financial institutions, payment networks and online platforms produces direct consumer benefits and should be facilitated rather than chilled by antitrust uncertainty. Guidance should expressly recognize this and offer a safety zone for narrowly scoped anti-fraud information sharing.
Supply-chain resilience presents a closely related case. Recent disruptions in semiconductors, pharmaceuticals, critical minerals and shipping have underscored the value of coordinated industry information about inventory levels, capacity utilization and disruption risk. While such information could in principle be misused to support collusive conduct, narrowly tailored sharing arrangements that focus on resilience, employ trusted third-party administrators and aggregate or anonymize firm-specific data pose minimal risk to competition and produce substantial benefits. The new guidance should recognize this category of activity and provide a clear path for its lawful conduct.
More generally, we recommend that the Agencies update their treatment of information sharing to reflect modern data practices. The relevant questions are familiar: is the information current or historical; is it firm-specific or aggregated; is it shared directly among competitors or through a neutral intermediary; and does the sharing relate to a legitimate, non-pretextual purpose? Guidance organized around these questions, with safety-zone treatment for arrangements that satisfy the standard safeguards, will be far more useful to firms than guidance that simply restates the rule of reason at a high level of abstraction.
We also urge the Agencies to consider express safety-zone treatment for standard-setting activities conducted within recognized standards-development organizations that follow established procedural safeguards, including openness, balance, due process and consensus. Standards developed under such procedures rarely raise serious competition concerns, and providing clarity to that effect will encourage participation by firms of all sizes.
4. Vertical Collaborations
Vertical collaborations, those between firms at different levels of the supply chain, are generally procompetitive and have been understood as such throughout the modern era of antitrust analysis. The Supreme Court has emphasized that vertical arrangements, including resale price maintenance, exclusive dealing and vertical integration through agreement, are properly evaluated under the rule of reason and are generally lawful absent demonstrated competitive harm (See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 900 (2007) (holding that vertical price restraints should be evaluated under the rule of reason and are not per se illegal); Ohio v. Am. Express Co., 585 U.S. 529, 547 (2018) (explaining that plaintiffs must demonstrate anticompetitive effects of vertical restraints in a two-sided market)). New collaboration guidance should reaffirm this analytical framework clearly and unambiguously.
We are concerned that some recent enforcement positions have appeared to retreat from this consensus, treating vertical arrangements with skepticism more appropriate to horizontal restraints. Such an approach is inconsistent with the relevant case law and with the underlying economic literature, both of which recognize that vertical arrangements typically resolve coordination problems, align incentives, reduce transaction costs and enable investments that would otherwise be foregone. Guidance that fails to reflect this consensus will chill productive activity and inject avoidable risk into commercial relationships that drive everyday consumer benefits.
We recommend that the new guidance include explicit clarifying language affirming that vertical collaborations are evaluated under the rule of reason; that such arrangements are not for that reason alone suspect, irrespective of the size of the parties involved; and that demonstrating an anticompetitive effect in a properly defined market is essential to any challenge. Safety zones should be available for vertical arrangements that do not involve substantial foreclosure, do not facilitate horizontal coordination and have plausible business justifications.
Guidance should also clarify the treatment of vertical arrangements between platforms and the businesses that rely on them. These relationships often involve genuine vertical integration of complementary services, with platforms providing infrastructure, distribution, payment processing, fraud prevention and other functions that the participating businesses could not efficiently provide for themselves. The fact that a platform may compete with some of its business users in particular product categories does not transform the underlying vertical relationship into a horizontal restraint, and guidance should make this point expressly.
5. Trade Association Activities
Trade associations are valuable institutions of American commerce. They facilitate industry-wide education, support standard-setting, conduct statistical surveys, represent member interests before the government and provide forums for the exchange of best practices. NetChoice itself is a trade association, and we have observed firsthand the productive role such organizations play in fostering competition and informing public policy.
We recommend that the new guidance include clarifying language and, where appropriate, safety zones for trade association activity such as association-led educational activities, including conferences, training programs and the dissemination of best practices; advocacy activities directed at government officials, which are protected by the First Amendment and the Noerr-Pennington doctrine; and the development of voluntary industry codes of conduct, including codes addressing safety, consumer protection, privacy and ethical practices.
Conclusion
The opening of this inquiry is a welcome and important step. The Agencies have the opportunity to deliver guidance that lowers compliance costs, encourages procompetitive collaboration, reaffirms the consumer-welfare standard and restores the predictability that businesses of all sizes need to operate confidently. We urge the Agencies to seize that opportunity by adopting clear, modernized safety zones and substantive clarifying language in the five areas identified above, while preserving enforcement flexibility against the genuinely anticompetitive conduct that the antitrust laws have always prohibited.
NetChoice appreciates the Agencies’ attention to these issues and stands ready to provide additional information, data or analysis that may assist in the development of the new guidance. We would welcome the opportunity to engage further with the Agencies’ staff as the rulemaking process proceeds.
Sincerely,
Patrick Hedger
Director of Policy, NetChoice (The views of NetChoice expressed here do not necessarily represent the views of all NetChoice members.)
NetChoice is a trade association that works to protect free expression and promote free enterprise online.