DealLawyers.com Blog

The DOJ & FTC’s draft merger guidelines have resulted in an avalanche of law firm memos – which we’re posting in our “Antitrust” Practice Area.  But one aspect of the draft guidelines that I hadn’t seen addressed until I read this post from a European economist on the U of Chicago’s ProMarket Blog was what signal other antitrust enforcement agencies might take from them. Here’s an excerpt that covers that topic:

Other jurisdictions have their own merger control guidelines, some very dated. The tone and posture of the U.S. Guidelines always matter and reverberate across jurisdictions. The 2010 Guidelines saw Europeans eventually come on board, for instance, with the whole paraphernalia of Upward Price Pressure indices; before that was the replacement of our ordoliberal tradition and presumptions with perceived Chicago innovation. These new draft Guidelines are an especially strong signal that the assessment of mergers is part of an economic policy toolkit that should not be narrow and self-referential, immanent and unchanging, but subject to re-evaluation.

This message strongly resonates in Europe with many: the recent controversy in the European Parliament around the appointment of a new Chief Economist at DG Competition, the distancing of multiple Commissioners and officials (including DG Comp’s) from the outgoing Chief Economist’s statements on industrial policy vs. efficiency invite a debate on antitrust enforcement that is not technocratic and insular, and away from obscure “consumer welfare” rules only economists can opine about.  In a polycrisis world it would be strange and bizarre if only competition policy remained a haven immune from deep rethinking and reconsideration.

Yeah, I don’t know what the “ordoliberal tradition” is either but we’re dealing with an economist here and I think you still get the point – when US antitrust regulators sneeze, their European counterparts usually catch a cold.

– John Jenkins