Tuesday, December 29, 2009
The FTC and DOJ's Horizontal Guidelines Review Project: What Changes Might Be In Store for Merger Review?
Posted by D. Daniel Sokol
Mary Coleman (Compass Lexecon) examines The FTC and DOJ's Horizontal Guidelines Review Project: What Changes Might Be In Store for Merger Review?
ABSTRACT: As part of the FTC and DOJ's Horizontal Guidelines Review Project, the agencies released 20 questions regarding the Guidelines on which they were soliciting input. These questions are related to (among other topics): (1) whether clarification that the agencies do not use a rigid step-by-step approach would be useful; (2) the use of “direct evidence;” (3) market definition (both product and geographic); (4) use of shares and concentration in the review process; (5) unilateral effects analyses; (6) price discrimination; (7) the role of large buyers in merger review; (8) uncommitted versus committed entry; (9) analysis in dynamic markets and the impact of mergers on innovation; and (10) the types of efficiencies that are cognizable.
I discuss below what I believe will be some of the key issues in the Guidelines review process, including Market Definition, Market Share and Concentration Screens and Presumptions, Clarification on Unilateral Effects, and Use of Direct Evidence.