This article is a part of the Merger Guidelines Symposium symposium.
Thanks to all of our participants in the Merger Guidelines Symposium. We hope many of you, as well as our readers, will look back over the collected posts and engage in an ongoing dialogue in the comments over the many interesting ideas raised here. You will find all of the posts from the symposium by clicking on the “merger guidelines symposium” link to the right, under the “blog symposia” heading. For you reference, we have also collected all of the posts below.
For our friends in the agencies, we hope this symposium gives you some food for thought and a sense of where an informed subset of the antitrust community see issues meriting attention. It is interesting to note (we received all of the submissions before any were posted) the extent to which so many of these comments focused on the problems of the structural presumption (including market definition and market share calculations), HHI thresholds and unilateral effects–all obviously related matters, most informed by a concern for aligning the Guidelines with agency practice.
Although there was not a lot of discussion of the related matter of the recent Farrell/Shapiro proposal on unilateral effects analysis without market definition, many of the posts provide a backdrop against which discussion of the proposal is sure to arise. For my own parting thought on the issue, I would note this: Whatever the problems with market definition in unilateral effects analysis, I hope we will not be too quick to jettison the exercise in exchange for the Farrell/Shapiro proposal (or similar). Although imperfect, the market definition exercise exerts some check on merger enforcement that is absent from the Farrell/Shapiro proposal. And in the absence of extremely good empirical data (as in Staples), I fear that the UPP analysis may permit enforcers to find competitive effects in a much wider range of cases than would be desirable. As essential background to assessing this trade-off in the modern economy, I refer our readers to the Sidak/Teece submission to the symposium and to their forthcoming paper.
- Joe Farrell, Welcome from the Agencies
- Dennis Carlton, Revising the Guidelines
- Luke Froeb, Merger Enforcement without Market Definition
- Robert Gertner, Revising the Guidelines
- Steve Salop, Comments on Updating the Merger Guidelines
- David Teece and J. Gregory Sidak, Dynamic Competition and Antitrust Law
- Einer Elhauge, Do the Merger Guidelines Need Revision?
- Joshua Wright, The Guidelines Should be Revised to Reject the PNB Presumption
- Andrew Gavil, Andrew Gavil on Revising the Merger Guidelines
- Daniel Crane, Let Sleeping Dogs . . .
- Herbert Hovenkamp, Herbert Hovenkamp on Revising the Merger Guidelines
- Thom Lambert, “Standardizing” The Horizontal Merger Guidelines
- Geoffrey Manne, Fix the Supply Side
- Danny Sokol, Small Changes
- Joseph Simons, Revisions to the Merger Guidelines: Above All, Do No Harm