Content area
Full Text
IN AUGUST 2010, AFTER ALMOST A YEAR OF STUDY, the U.S. Department of Justice and the Federal Trade Commission issued revised Horizontal Merger Guidelines. The 2010 Guidelines replaced in their entirety the similar Guidelines that were issued in 1992 and revised in part in 1997. The new Guidelines thus represent the first major revision to the Horizontal Merger Guidelines in eighteen years.
The 2010 Horizontal Merger Guidelines describe how the federal antitrust Agencies evaluate the likely competitive effects of mergers between existing and potential horizontal competitors. In the pages that follow this Introduction, readers are treated to a number of thought-provoking analyses of the new Guidelines, in articles discussing the historical context for and philosophical approach of the new Guidelines, some of the new analytic tools now deemed ready for "prime time," and the implications of the new Guidelines for collaborations among competitors, mergers involving potential competitors, and international convergence. We could not have collected a more distinguished and thoughtful group of practicing lawyers and economists to provide commentary on this important development.
Significantly, in issuing the 2010 Guidelines, the Agencies emphasized that they were not intended to represent a change in direction for merger enforcement policy. Indeed, as the Agencies themselves pointed out, many of the changes from the 1992 Guidelines to the 2010 Guidelines merely reflected a formalization of guidance already contained in the Commentary on the Horizontal Merger Guidelines issued by the Agencies in 2006.
Thus, the 2010 Guidelines retain the objectives and basic approach of the 1992 Guidelines: First, the new Guidelines reaffirm that the over-arching purpose for merger review is to identify mergers that "create, enhance, or entrench market power or . . . facilitate its exercise," and that a merger is thus subject to challenge if it is "likely to encourage one or more firms to raise price, reduce output, diminish innovation, or otherwise harm consumers . . . ." (2010 Guidelines, § 1)
Second, the 2010 Guidelines retain the basic analytic building blocks for reviewing mergers under these standards. Thus, the new Guidelines make clear that the Agencies will continue ("normally") to define relevant product and geographic markets (§ 4); identify market participants (§ 5.1); estimate market shares (§ 5.2); evaluate the impact of the merger on...