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5 reasons the feds won’t tell us why they green-lit the Amazon-Whole Foods merger

5 reasons the feds won’t tell us why they green-lit the Amazon-Whole Foods merger
[Photo: Whole Foods Market]

When I first heard that the FTC had completed an investigation into Amazon’s acquisition of Whole Foods–and had decided that the $13.7 billion deal didn’t raise any unfair-competition concerns–I immediately sent a FOIA request asking for any records related to that investigation. It’s a bit of a fool’s errand since the FTC typically doesn’t share many details about how it reaches such decisions, but maybe I just like to torture myself. Weeks later, the FTC responded to my request. The good news is, the agency found lots and lots of documents related to its investigation into the Amazon-Whole Foods deal. The bad news? It won’t share any of them. Apparently, every single record related to the deal is exempt from FOIA disclosure for various reasons.

A full rundown of those reasons is below. It’s pretty standard stuff, really, but a reminder of how often the FOIA process falls short of producing even a sliver of transparency from the government.

  1. “Law enforcement” exemption: Some records related to the merger were given to the FTC as part of a law enforcement investigation. The FTC says it’s not required to share those.
  2. “Pre-merger notification” exemption: Some of the records were submitted to the FTC as a result of the Hart-Scott-Rodino Act, which requires companies to give the government advance notice of a merger. The FTC says it’s not required to share those, either.
  3. “Confidential information” exemption: The FTC won’t share any records that contain sensitive confidential or financial information about a company. (That’s understandable.)
  4. Source protection: Some of the merger-related documents were shared with the FTC on the condition that they be kept confidential. As a way of protecting its sources, the FTC won’t share those.
  5. The “secret sauce” exemption: This is the one that makes the least sense to me. The FTC says it won’t share any records that contain “staff analyses, opinions, and recommendations” because those records are pre-decisional and “an integral part of the agency’s decision-making process.” But of course the whole point of sending a records request is to learn how the FTC arrived at this decision.

Add it all up, and you have zero insight into why the federal government seemed to decide so quickly that this hugely consequential merger was of no consequence.CZ