James Langenfeld, Oct 28, 2010
The Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) issued revised Horizontal Merger Guidelines (“HMGs”) on August 19, 2010. The HMGs resulted from a process that obtained comments about revising the 1992 Horizontal Merger Guidelines (1992 HMGs), held workshops, issued proposed HMGs, and received comments on the proposed HMGs before finalization. The stated purposes of the HMGs are:
[to] describe the principal analytical techniques and the main types of evidence on which the Agencies usually rely to predict whether a horizontal merger may substantially lessen competition[,] . . . to assist the business community and antitrust practitioners by increasing the transparency of the analytical process underlying the Agencies’ enforcement decisions[, and to] assist the courts in developing an appropriate framework for interpreting and applying the antitrust laws in the horizontal merger context.
This article discusses how well the HMGs achieve the first two of these goals, and offers some thoughts related to third. First, the HMGs change the landscape for evaluating mergers in several potentially important ways, at least compared to the 1992 HMGs and many typical past practices. These changes in part reflect Agency practices since the 1992 HMGs, and in part reflect an increased emphasis on certain types of analysis and reduced emphasis on others. Second, the HMGs offer many more details of the analyses and types of evidence c