FTC, Justice To Review Merger Guidelines

Used to analyze mergers for possible anticompetitive harms

The Federal Trade Commission (FTC) and the Justice Department have announced that they are going to review their horizontal merger guidelines, which they use to analyze mergers for possible anticompetitive harms.

“The bulk of the Merger Guidelines is over 17 years old,” said FTC Chairman Jon Leibowitz in a speech to the Third Annual Georgetown Law Global Antitrust Enforcement Symposium in Washington. "The 1992 Guidelines explicitly stated that they would be revised from time to time. We think the time has come to do that.”

Leibowitz said the idea was to demystify the process. He noted that he has been a critic of the "optimism" about merger efficiencies and how that has affected past merger reviews, but also said that review is not about "giving precedence to one antitrust approach or another."

He said there will be a series of public workshops and plenty of opportunity for public input on the review, which he suggested was overdue.

Among the things they will be looking at are: use of direct evidence of anticompetitive effects as an indication a merger may harm consumers, whether or not to clarify how it uses the "hypothetical monopolist test" to define markets, and whether to update its description of how the agencies use concentration statistics to gauge the impact of a merger on a market, and whether it should add remedies to that gauge.

The workshops will be held in December 2009 and January 2010. The first will be held in Washington Dec. 3, followed by workshops in Chicago, New York City, and San Francisco, and a final workshop back in Washington.