The Bad News

The Department of Justice and Federal Trade Commission are looking to update the horizontal merger guidelines.

From the Questions for Public Comment [PDF], the agencies list two goals for Horizontal Merger Guidelines reform: “First, updated guidelines could more accurately and clearly describe current Agency practice. Second, updated guidelines could reflect and incorporate learning and experience gained since 1992.” This sounds innocuous enough, right? We’re just going to change the merger guidelines so they actually describe what we’re really doing anyway, and adding in some new things we learned. No biggie.

Well, I’ll save my snark until after the ‘series of public workshops’ has been completed and new guidelines have proposed or adopted. And I’m being somewhat more disingenuous than is called for, as the questions the FTC and DOJ have put out to solicit public input on are actually very thoughtful and unbiased, and bring up issues of antitrust law that very much ought to be addressed. But I’ll admit it: the prospect of a change in merger guidelines under a Democratic Administration doesn’t exactly have my heart leaping for joy.

For a good discussion on the effects of a Guidelines update, both pro and con, check out “Should the Agencies Issue New Merger Guidelines?: Learning From Experience”. His conclusion:

“I believe that the business community and merger practitioners understand current enforcement policy on horizontal mergers quite well. This is true with respect to general policies and also with respect to fine points on market delineation, competitive effects analysis, and evaluation of efficiencies claims. Therefore, I perceive no significant uncertainty that should be addressed through revising the Horizontal Merger Guidelines.”

-Susan

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