Monday, December 28, 2009
Posted by D. Daniel Sokol
Paul Denis (Dechert) has an interesting analysis on Horizontal Merger Guidelines Revision: A Draftsman's Perspective.
ABSTRACT: As the principal draftsman of the 1992 Guidelines, I developed what might fairly be described as an unusual attachment to the document and its framework. But even from that perspective, I must admit it is time to revise the 1992 Guidelines. In order to provide meaningful guidance, guidelines must reflect actual agency practice. But Agency practice has diverged from the 1992 Guidelines, in some respects for the better and in some respects for the worse.
Perhaps the best evidence of this divergence is the Commentary on the Horizontal Merger Guidelines (“the Commentary”) released by the Federal Trade Commission and the Department of Justice in 2006. The Commentary shows how the agencies, among other things, have de-emphasized market definition and market concentration, devoted greater attention to competitive effects, largely ignored issues of dynamic response, and attempted to break free from the step-wise framework permeating the 1992 Guidelines. This divergence between the 1992 Guidelines and actual agency practice itself is sufficient to warrant revision of the 1992 Guidelines, agency practice—or perhaps both.