On Tuesday, September 22, 2009, the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission announced that they are planning to hold workshops with a view toward modifying or amending the agencies' current Merger Guidelines. We do not believe that this presages any major change in current antitrust law enforcement policies.
The government has issued Merger Guidelines to provide guidance to the business community and antitrust bar for more than 40 years, beginning in 1968. There were major modifications and additions in 1982, 1992, and 1997. The last substantial revision in 1992 stated that the Merger Guidelines would be revised from time to time. As FTC Chair Jon Liebowitz publicly stated on the day of the announcement, “We think the time has come to do that.”
The Merger Guidelines are primarily procedural and analytic, with “safe harbors” that give comfort of freedom from legal challenge. While differing administrations may vary in their interpretations of the staff's competitive analysis, the modes of analysis should not vary meaningfully between the political parties. However, implicit in competitive analysis is its evolutionary nature. Modes of analysis change (and improve) over time for a variety of reasons. The issuance of new guidelines has historically been little more than a codification and publication of what the agencies were already doing, facts already generally known to antitrust lawyers who regularly practice in the field.
As Mr. Liebowitz noted, “[t]he aim of this project will be to demystify the process and provide more accurate guidance than practitioners and the courts have been getting from the guidelines to date.” We believe the initial workshops will focus on this necessary transparency and explain variations between the 1992 version of the Merger Guidelines and their current implementation. After the workshops, the government will begin the lengthy process of vetting and drafting the Merger Guidelines revisions.