Treating Like Cases Alike: The Need for Consistency in the Forthcoming Merger Guidelines

The U.S. Department of Justice and Federal Trade Commission are expected to release new merger guidelines soon. Among other requirements, the Agencies should strive to develop new guidelines that are consistent both internally and with binding precedent. Indeed, because the “essence of the rule of law is that like cases are treated alike,” it is doubtful that inconsistent guidelines could win judicial adoption. Based on recent statements and enforcement actions, there is a risk that the New Guidelines will adopt inconsistent positions on several topics. For example, recent discussions of “nascent competition” suggest the Agencies might formally adopt a lenient test for assessing the competitive significance of entrants deemed “nascent competitors,” but a different, more stringent test for assessing the competitive significance of any other potential entrants. Public statements also suggest the Agencies could take inconsistent positions with respect to market definition and out-of-market effects.

By Keith Klovers, Alexandra Keck & Allison Simkins^*

I. INTRODUCTION

Earlier this year the U.S. Department of Justice and Federal Trade Commission (hereinafter “the Agencies”) announced their intention to revise “federal merger guidelines,” including the 2010 Horizontal Merger Guidelines.^[1] As Assistant Attorney General (“AAG”) Jonathan Kanter explained, these revised Guidelines (hereinafter “New Guidelines”) will “ensure our merger enf