From the Ft article today:
While the justice department's letter has no effect on last year's approval of the CME-CBOT deal, it re-opens the sensitive issue of clearing ownership just as the CME is poised to acquire the New York Mercantile Exchange, further bolstering the CME's dominance.
However, the signatories to the letter - including George Baranko, an attorney central to last years's CME-CBOT probe - said their comments did not apply to "energy futures markets" - a move apparently designed to indicate that the department was not prejudging the outcome of any probe into a CME-Nymex merger.
Commenting on Tuesday's letter, a spokesman for the Justice Department said: "In its comments to the Treasury, the Antitrust Division recommended a study to determine whether the current regulatory structure for interest rate futures transactions could be improved in a manner that would make entry easier. In the CME-CBOT transaction, the Division investigated whether the transaction would substantially lessen competition, which involved a range of issues. Among other things, the Division noted that the CME's products and CBOT's products were not close substitutes and that neither firm was likely to introduce products directly competitive with the other's established products. In connection with one issue, entry, the Division noted that, given the announced intentions of two exchanges to offer interest rate futures products, the evidence indicated that entry would not be foreclosed by the transaction under the current regulatory structure. The Division did not comment on the separate issue of whether the regulatory structure could be improved."
http://us.ft.com/ftgateway/superpage.ft?news_id=fto020520081847316846&page=2
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So the DOJ comments were limited to interest rate products, and expressly excluded energy. Moreover, they were submitted as comments to a Treasury rule making and thus have no force in and of themselves. Chances the Treasury will invalidate the current CME structure: zero.
Hard not to believe this was a gross overreaction.