The Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ), the federal agencies that share antitrust enforcement authority, announced on September 22 that they will conduct joint public workshops to explore the possibility of updating the Horizontal Merger Guidelines that are used by both agencies to evaluate the potential competitive effects of mergers and acquisitions.

Goals and Process

The goal of the workshops will be (a) to determine whether the Horizontal Merger Guidelines accurately reflect the current practice of merger review at the FTC and DOJ, as well as (b) to take into account legal and economic developments that have occurred since the last significant Guidelines revision in 1992.

In announcing the review, Christine Varney, Assistant Attorney General for Antitrust at the DOJ, observed: "We intend the workshops to explore whether the Guidelines accurately and clearly describe current agency practice, promoting our goal of greater transparency in the merger-review process." She added: "The Agencies are also seeking to assess whether the Guidelines should be revised to capture advances in research or evolution in best practices that have taken place over the seventeen years since the Guidelines were last updated in a wholesale fashion." Similarly, Jon Leibowitz, Chairman of the FTC, stated: "The 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."

The workshop process will include the following steps: (a) publication of a set of questions about the current Guidelines and possible revisions; (b) following receipt of public comments and original research addressing those questions, the agencies will host a series of five workshops; (c) the workshops will take place in December 2009 and January 2010.

The first workshop will be held in Washington, DC, on December 3, 2009, followed by workshops in Chicago, New York City, and San Francisco. A final workshop also will be held in Washington, DC.

Questions For Public Comment

In connection with this process, the agencies announced on September 22 that they are seeking public comment on a number of areas where an examination of the current Guidelines may be most valuable" and presented questions "intended to focus the public conversation on these areas of the Guidelines." (The questions can be accessed at http://www.ftc.gov/bc/workshops/hmg/hmg-questions.pdf.) The questions involve the following areas and topics:

  • The overall method of analysis used by the agencies
  • Use of more direct forms of evidence of competitive effects
  • Market definition
  • Measure and interpretation of market shares and market concentration
  • Unilateral effects (especially in markets with differentiated products)
  • Price discrimination
  • Geographic market definition
  • Relevance of large buyers
  • Distinction between "uncommitted" and "committed" entry
  • Efficiencies (including the distinction between efficiencies involving fixed and marginal cost savings)
  • Non-price effects of mergers, especially effects on innovation
  • Remedies

The agencies encouraged anyone submitting comments to provide answers "from two perspectives: (1) whether revisions in the areas raised in the questions could yield guidelines that more accurately describe actual Agency practice, and (2) whether revisions could lead to a more accurate and/or more efficient merger review process."

It appears that one of the key questions put forward for discussion will involve the use of evidence of "competitive effects", or the likelihood of future competitive effects, in situations where traditional market concentration (market share) analysis might not support a challenge.