Last updated on Oct 29, 2021

Merger Guidelines Symposium

October 26-27, 2009

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. Whatever the problems with market definition in unilateral effects analysis, one hopes 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), 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, we refer our readers to the Sidak/Teece submission to the symposium and to their forthcoming paper.

In This Symposium

Welcome From the Agencies

I think this symposium is a terrific idea and thank Josh Wright for organizing it.  As Chairman Leibowitz and AAG Varney said, we want to have as open a process as possible as we explore whether to update the HMG and, if so, how.   There can hardly be a more open place for a symposium ... Welcome From the Agencies

Dennis Carlton on Revising the Merger Guidelines

1. Do the Guidelines need revision? The Horizontal Merger Guidelines have served a very valuable purpose by making horizontal merger analysis much more sensible than it was prior to the 1980s.There is much less disagreement about horizontal merger policy than there is about vertical antitrust policy so some vertical guidelines would be especially welcome. Nevertheless, ... Dennis Carlton on Revising the Merger Guidelines

Merger Enforcement Without Market Definition?

The Horizontal Merger Guidelines have brought discipline to the unruly world of merger analysis; but have also accommodated advances in our understanding of the myriad ways in which firms compete and how mergers affect such competition.  However, in cases where there is better information about the effects of the merger than there is about the ... Merger Enforcement Without Market Definition?

Robert Gertner on Revising the Guidelines

The stated purpose of the DOJ/FTC Horizontal Merger Guidelines is to “reduce the uncertainty associated with enforcement of the antitrust laws.”  The Guidelines have had limited success in achieving this goal. They generally succeed in two important dimensions and fail in one. First, the Guidelines lay out a five step analysis consisting of market definition, ... Robert Gertner on Revising the Guidelines

Comments on Updating the Merger Guidelines

Of course, the Merger Guidelines need to be updated.  Except for efficiencies, they haven’t been updated in 17 years.   Lawyers and economists with a regular antitrust practice may not require an update in light of their knowledge of the 2006 Commentary, speeches and agency experience.  But, the rest of the antitrust world does.  The most ... Comments on Updating the Merger Guidelines

Dynamic Competition in Antitrust Law

The Horizontal Merger Guidelines are the intellectual cornerstone of modern antitrust law, yet they contain little discussion of innovation or dynamic competition. Although the Merger Guidelines do not constitute law merely by virtue of their promulgation by the agencies, the courts previously have accepted the revised principles that the agencies have advocated. By embracing the ... Dynamic Competition in Antitrust Law

Do the Merger Guidelines Need Revision?

The merger guidelines should be revised, not only to provide clearer guidance, but because the current version makes it harder for the agencies to win cases when they do challenge a merger.  The reason is that the guidelines often don’t fit actual agency practice or modern economic theory.  For example, part of the reason the ... Do the Merger Guidelines Need Revision?

The Guidelines Should Be Revised to Reject the PNB Structural Presumption

Yes, the Merger Guidelines should be revised. The Guidelines primary purpose is to “articulate the analytical framework the Agency applies in determining whether a merger is likely substantially to lessen competition.”   While the Guidelines have been very successful in articulating a useful economic framework for analyzing mergers, their performance in terms of satisfying that goal ... The Guidelines Should Be Revised to Reject the PNB Structural Presumption

Andrew Gavil on Revising the Merger Guidelines

1.  Do the Merger Guidelines Need Revision? Yes.  Conceptually, the current Guidelines incorporate multiple strands of intellectual and legal history with respect to merger analysis that have been layered one upon the other over time, but never effectively integrated.  This now encumbers the application of the Guidelines and may be inhibiting the government’s capacity to ... Andrew Gavil on Revising the Merger Guidelines

Let Sleeping Dogs…

I feel no great urgency to revise the Guidelines.  True enough, they’re more of an analytical thought experiment than an accurate description of how merger review takes place in the agencies, but who’s really fooled?  Perhaps some business people think that the Guidelines are a computer program waiting for the introduction of the relevant data ... Let Sleeping Dogs…

Herbert Hovenkamp on Revising the Merger Guidelines

Yes, the Merger Guidelines should be revised; in particular: a.  The discussion of concentration thresholds for collusion facilitating mergers must be aligned more closely with both recent case law and actual enforcement practices; otherwise they fail to provide guidance.  The current Guidelines indicate that concentrations greater than 1800 HHI and a post-merger increase exceeding 100HHI ... Herbert Hovenkamp on Revising the Merger Guidelines

"Standardizing" the Horizontal Merger Guidelines

I’m confident that my esteemed colleagues, who have far more expertise about the merger guidelines than I, will offer all sorts of terrific ideas for revising the substance of the guidelines. While I would certainly advocate a few specific changes (i.e., revise the HHI thresholds to reflect actual agency practice), I’ll leave the devilish details ... "Standardizing" the Horizontal Merger Guidelines

Fix the Supply Side

Do the Merger Guidelines need revision? No.  Thanks for having me. OK. Yes–and market definition/market shares, and in particular the effective incorporation of supply-side effects, seem to me like the most pressing issues in need of attention. Judge Posner, in the first edition of his justly celebrated Antitrust Law, noted that market definition was an ... Fix the Supply Side

Revisions to the Merger Guidelines: Above All, Do No Harm

My sense is that there is no need to revise the DOJ/FTC Horizontal Merger Guidelines, with one exception.  As Greg Werden points out, “a thorough revision would take up to three years and occupy some of the agencies’ best people for a total of more than two thousand hours.” The current guidelines lay out the ... Revisions to the Merger Guidelines: Above All, Do No Harm

Merger Guidelines Symposium Conclusion

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 ... Merger Guidelines Symposium Conclusion