September 29, 2009

DOJ/FTC to Review U.S. Horizontal Merger Guidelines

From Jones Day: Last week, the U.S. Department of Justice and the Federal Trade Commission announced that they would seek public comment and hold joint public workshops to explore possible updates to the Horizontal Merger Guidelines, which outline the antitrust agencies’ merger enforcement policies. The Guidelines, which were last significantly revised in 1992, play a critical role in shaping analysis and outcomes in merger decision both at the agencies and in the courts. A review of the Guidelines was anticipated, particularly given the Obama’s administration’s stated goal of adopting a more aggressive approach to antitrust enforcement, including merger reviews.

In announcing the project, Assistant Attorney General Christine A. Varney stated:

“In light of legal and economic developments that have occurred since the last major revision of the guidelines, it is an appropriate time for the antitrust agencies to conduct a review of the guidelines to determine whether any revisions should be made to better protect American consumers and businesses from anticompetitive mergers. . . . Having guidelines that offer more clarity and better reflect agency practice provides for enhanced transparency and gives businesses greater certainty when making merger decisions, resulting in a more competitive marketplace that benefits consumers.”

In a speech last week, FTC Chairman Jon Leibowitz identified some of the specific topics that will be considered:

“[T]he agencies’ use of direct evidence of anticompetitive effects as an indication that the merger may harm consumers, whether we should clarify how the agencies use the hypothetical monopolist test to define markets, whether we should update the description of how the agencies use concentration statistics like HHIs to understand the impact of a merger on the market, and whether we should add remedies to the guidelines as the EU has done.”

The project will be led on the FTC side by Rich Feinstein, FTC Director of the Bureau of Competition; Joe Farrell, Director of the Bureau of Economics; and Howard Shelanski, Deputy Director for Antitrust in the Bureau of Economics. The Antitrust Division representatives are Deputy Assistant Attorneys General Molly Boast, Carl Shapiro, and Phil Weiser.

The first workshop, which will be open to the public, will be held in Washington, D.C., on December 3, 2009, followed by workshops in Chicago, New York City and San Francisco. A final workshop also will be held in Washington, D.C.