The 2010 Merger Guidelines: Do We Need Them? Are They All We Need?
15 October 2010
By Dr. Gregory K. Leonard
In this article from the Antitrust Chronicle, NERA Senior Vice President Dr. Gregory K. Leonard analyzes the recently published revisions to the Horizontal Merger Guidelines, which describe how the US Department of Justice and the Federal Trade Commission evaluate the potential competitive effects of mergers and acquisitions under the federal antitrust laws. Dr. Leonard notes that, unlike earlier versions from 1982 and 1992, the 2010 Merger Guidelines do not offer any radical changes in Agency policy and can best be characterized as reflecting existing Agency practices. While some may argue that the lack of innovative principles indicate that there is no longer a need for the Merger Guidelines, Dr. Leonard believes that the true purpose of these guidelines is to summarize established general principles and to serve as a learning resource for less experienced merger review practitioners. For more detailed analysis, Dr. Leonard suggests that experts turn to the Commentary on the Merger Guidelines, issued by the Agencies in 2006, as it provides detail on the analytical approaches used by the Agencies and offers actual case examples that illustrate these approaches. Dr. Leonard believes that the antitrust community would be well-served if the Agencies were to produce an on-going regular series of Commentaries on Merger Analysis that describe the details of how they approach merger review.
