OCT-10(2)

In this issue: In August, the FTC and DOJ issued their new horizontal merger guidelines. In this special double issue, we explore if these new guidelines accomplish the Agencies’ stated goals: describing their go-to analytical techniques; increasing transparency of the review process; and developing a framework to assist the courts in interpreting the antitrust laws. […]

2010 Horizontal Merger Guidelines: Changes in Policy, Transparency, & Predictability

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 […]

The 2010 Merger Guidelines and the Litigation Mulligan: Better Economics but Not (Necessarily) More Clarity Before the Agencies and the Courts

Hill Wellford, Gregory Wells, Oct 28, 2010 The new Horizontal Merger Guidelines, issued by the U.S. antitrust Agencies on August 19, 2010, mark a clear change from their 1992 predecessor.They reduce the importance of traditional market definition, increase Herfindahl-Hirschman Index (“HHI”) thresholds, and expand the types of evidence considered. Most commentary to date has focused […]

New Horizontal Merger Guidelines Indicate Greater Scrutiny of High Tech and Pharmaceutical Transactions

Janet McDavid, Eric Stock, Oct 28, 2010 On August 19, 2010, the Department of Justice and the Federal Trade Commission (the “Agencies”) released the final version of their revised Horizontal Merger Guidelines (“Guidelines”), which are used by the Agencies to analyze the competitive implications of mergers between direct competitors. Whereas the prior version of the […]

The 2010 Merger Guidelines: Do We Need Them? Are They All We Need?

Gregory Leonard, Oct 28, 2010 The release of the 2010 Merger Guidelines was largely an anticlimax. Unlike the 1982 and 1992 Merger Guidelines, the 2010 Merger Guidelines did not offer any radical changes in Agency policy or introduce any innovative principles or modes of analysis. Instead, the 2010 Merger Guidelines can best be characterized as […]

WARNING: Improper Use of the New Horizontal Merger Guidelines Can Result in Overly Narrow Markets, Mistaken Inferences of Market Power, and Wrong-Headed Analyses

Michael Doane, Luke Froeb, Steven Tschantz, Oct 28, 2010 Every first-year law student has heard the story of the man who was mowing his lawn when he realized that his hedge also needed trimming.  Since he didn’t own a hedge trimmer, he lifted the lawnmower up, turned it on its side, and then accidentally cut […]

The Framework of the 2010 Horizontal Merger Guidelines

Paul Denis, Oct 28, 2010 The two principal reasons that the 1992 Horizontal Merger Guidelines achieved longevity, judicial acceptance, and international imitation were: (1) for the most part, it asked the right questions; and (2) it provided a structured framework in which to ask those questions.  If those attributes of the 1992 Guidelines are viewed […]

Thy Lamp Unto the World: International Convergence After the 2010 Guidelines

Oct 28, 2010 Those of us who practice competition law globally and who engage in international technical assistance are regularly struck by the wide variation in culture and expertise among the world’s competition agencies, now numbering more than 100. Uniformity is decades away, if that. But serious efforts towards achieving greater uniformity are a daily […]

Continuity and Change in the 2010 Merger Guidelines

Malcolm Coate, Joseph Simons, Oct 28, 2010 For almost 30 years, the U.S. antitrust enforcement agencies have described a structured, step-by-step analytical methodology in their Merger Guidelines. Prior revisions to the Guidelines were designed, in significant part, to clarify actual practice at the agencies in light of historical experience, while keeping the underlying methodology intact. […]