On April 20,
2010, the Federal Trade Commission (FTC) released for public comment proposed
revisions to the Joint FTC/DOJ Horizontal Merger Guidelines (Guidelines). The
revisions are the product of a series of public workshops held over six months
involving leading antitrust practitioners, enforcers, scholars, and economists.
The consensus from those workshops was that the Guidelines needed to be updated
to better reflect the current federal antitrust agencies' actual merger review
practice. Much has changed since 1992 - the last time the Guidelines had been
substantially updated. New economic theories have developed and are widely used
by the federal antitrust enforcement agencies to analyze mergers between
competitors. Additionally, the agencies increasingly rely on sources of
evidence other than market share and concentration to predict a merger's
effects in a particular market. While such realities became apparent to
antitrust attorneys who regularly defend mergers against the federal antitrust
agencies, the general public was kept in the dark.
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