Margin of Error: The Flawed Paradigm in the New Merger Guidelines

The U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”), the two federal agencies that review mergers, recently issued new Horizontal Merger Guidelines, (“Guidelines”). The Guidelines, first issued in 1984 and revised in 1992 and 1997, comprise a formal statement of the agencies’ approach to merger analysis, an approach that has generally reflected the economic concepts of markets and mar