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!
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The 2010 Horizontal Merger Guidelines
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)
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)
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)
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)
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)
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)
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)
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)
