U.S. ANTITRUST AGENCIES TO EXPLORE CHANGES TO HORIZONTAL MERGER GUIDELINES

On September 22, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) announced that they will solicit public comment and hold joint public workshops to explore the possibility of updating the Horizontal Merger Guidelines that are used by both agencies to evaluate the potential competitive effects of mergers and acquisitions.

The Merger Guidelines describe the analytical framework and specific standards normally used by the agencies in analyzing mergers. The Guidelines are intended to reduce the uncertainty associated with enforcement of the antitrust laws in the merger area. The last significant revision of the Guidelines was in 1992, however, the agencies issued a detailed Commentary on the Guidelines in 2006.

The goal of the workshops will be to determine whether the Guidelines need to be updated. In other words, do the Guidelines accurately reflect the current practice of merger review? Do the Guidelines take into account legal and economic developments that have occurred since 1992? Topics to be discussed include: the overall method of analysis used by the agencies; the use of more direct forms of evidence of competitive effects; market definition; market shares and market concentration; unilateral effects, especially in markets with differentiated products; price discrimination; geographic market definition; the relevance of large buyers; the distinction between uncommitted and committed entry; the distinction between efficiencies involving fixed and marginal cost savings; the non-price effects of mergers, especially the effects of mergers on innovation; and remedies.

The agencies will issue a set of questions about the current Guidelines and possible revisions. Following receipt of public comments and original research addressing those questions or other issues related to the Guidelines, the agencies will host a series of five workshops. The workshops, which are open to the public and press, will take place in December 2009 and January 2010. The first workshop will be held in Washington, D.C., on Dec. 3, 2009, followed by workshops in Chicago, New York City and San Francisco. A final workshop also will be held in Washington, D.C. The dates and times for the other workshops have not been set yet.

Andre Barlow
(202) 589-1834
abarlow@dbmlawgroup.com