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. Our distinguished group of practitoners and scholars—Bill Blumenthal; Malcolm Coate & Joe Simons; Paul Denis; Mike Doane, Luke Froeb, & Steven Tschantz; Jim Langenfeld; Greg Leonard; Jan McDavid & Eric Stock; and Hill Wellford & Greg Wells—give us their diverse opinions. Enjoy!

The 2010 Horizontal Merger Guidelines

Oct 28, 2010

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

By reducing clarity and consistency in favor of granting broader discretion to decision makers, the Guidelines waive an opportunity to serve as a template for bringing greater order to global process. William Blumenthal (Clifford Chance)

Malcolm Coate, Joseph Simons, Oct 28, 2010

Continuity and Change in the 2010 Merger Guidelines

The revision is also innovative, because it modifies the methodology to place greater emphasis on evidence of adverse competitive effects. Most of this evidence is completely consistent with past practice and uncontroversial. One type of evidence is not. Malcolm B. Coate (FTC) & Joseph J. Simons (Paul, Weiss)

Paul Denis, Oct 28, 2010

The Framework of the 2010 Horizontal Merger Guidelines

The 2010 Guidelines move away from asking the right questions by generally removing from the Guidelines the notion that anything is necessary to establish the market power effects of a merger. Paul Denis (Dechert)

Michael Doane, Luke Froeb, Steven Tschantz, Oct 28, 2010

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

We are given a lot of tools, but no warning label on how or when to employ them. Michael Doane (Competition Economics, LLC), Luke Froeb & Steven Tschantz (Vanderbilt University)

James Langenfeld, Oct 28, 2010

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

In evaluating the impact of the HMGs, it is useful to keep in mind the distinction between transparency and predictability. James Langenfeld (Navigant Economics)

Gregory Leonard, Oct 28, 2010

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

If the 2010 Merger Guidelines do not appear to offer much that is new, it is reasonable to ask what purpose they serve. Do we need Merger Guidelines any more? Gregory Leonard (NERA)

Janet McDavid, Eric Stock, Oct 28, 2010

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

It also indicates greater Agency scrutiny of such transactions in industries characterized by differentiated products and high levels of R&D spending”such as the high tech and pharmaceutical industries. Janet McDavid & Eric Stock (Hogan Lovells)

Hill Wellford, Gregory Wells, Oct 28, 2010

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

The big development of the new Guidelines is that, read as a whole, they embrace three trends with the potential to make merger work significantly longer and less predictable. Hill Wellford & Gregory Wells (Bingham McCutchen)