Wednesday, January 6, 2010
Posted by D. Daniel Sokol
Deborah Feinstein (Arnold & Porter) suggests Revising the Merger Guidelines: Looking Back to Move Forward.
ABSTRACT: The Federal Trade Commission and Department of Justice have announced plans to consider revising the Horizontal Merger Guidelines “in light of changes in economic learning, the case law, and practice at the Antitrust Division and the FTC.” There can be little doubt that aligning the Guidelines to actual practice and providing greater transparency to parties on the analysis the agencies will use is beneficial. There is, of course, a threshold question as to whether what the agencies have done—and may do differently in the future—is appropriate.
Merger analysis is by necessity forward-looking and it can be difficult to make predictions about the future. In that vein the last question the agencies ask in their list of questions for public comment is “Should the Guidelines be revised to reflect learning based on merger retrospective studies?” In some respects that should be the first question—and the answer should be yes. The agencies should, in some form, examine their analytical approach to determine whether they made accurate predictions and, if not, why not.