The new U.S. Vertical Merger Guidelines close the gap that was long manifest between the old guidance and both the economic theory and the agencies’ practice. The calls for a revision of the guidelines intensified with the AT&T/Time Warner unfolding, which raised awareness as to the need for pedagogy regarding the agencies’ approach to vertical mergers. The guidelines are now clear on the interdependence between EDM and incentives to foreclosure and develop on bargaining theory, even if abstracting from explaining the logic of threats in a negotiation process. These were key issues raised in the AT&T/Time Warner ruling. The guidelines do not, however, uncover the veil on the approach of the agencies to new challenges, such as mergers involving digital conglomerates.

By Ana Sofia Rodrigues1

 

I. INTRODUCTION

On June 30, 2020, the DOJ and the FTC issued the final version of the long awaited new Vertical Merger Guidelines (“VMG”). The guidelines aim at providing “the principal analytical techniques, practices, and enforcement policy for vertical mergers.”2

The document replaces the 1984 Non-Horizontal Merger Guidelines (“NHMG”), which did not experience any revision for over three decades. This is in sharp contrast with the Horizontal Merger Guidelines, which were reviewed three times (1992, 1996, and 2010), since the 1984 document was issued.

With few exceptions, there was wide consensus that the 1984 NHMG were outdated and in need of revisio

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