On August 19, 2010, the DOJ and FTC issued new Horizontal Merger Guidelines. The Guidelines were updated to reflect current agency practice. One of the changes in the new Guidelines is less reliance on market shares/concentration and more emphasis on the likely competitive effects of a transaction. The new Guidelines are supposed to be more flexible and fact dependent and less formalistic.
The new Guidelines are the result of a year long project that begain in September 2009. Draft versions of theGuidelines were issued in April, and the agencies held a series of workshops to solicit comments on the draft Guidelines.
Although the FTC's press release claims the new Guidelines will "give businesses a better understanding of how the agencies evaluate proposed mergers," FTC Commissioner Thomas Rosch called the new Guidelines "flawed." He explained: "These guidelines do not describe the way that the Bureau of Competition and enforcement staff at the commission proceed today. They also do not reflect the way that the courts proceed." Commissioner Rosch, however, voted in favor of the new Guidelines because he saw them as an improvement over the old Guidelines.
For our prior coverage of the new Guidelines, go here.