Tuesday, August 31, 2010
Posted by D. Daniel Sokol
ABSTRACT: The U.S. Department of Justice and the Federal Trade Commission are currently in the process of revising their Horizontal Merger Guidelines. I explain that if a revision is to occur, then there are certain parts of the Guidelines that are most in need of revision, including the sections on unilateral and coordinated effects, committed and uncommitted entry, numerical concentration thresholds for safe harbors, and fixed costs. I also explain what should not become part of any new Guidelines, such as replacing the market definition/market concentration starting point with a competitive effects framework such as "upward pricing pressure." The proposed Guidelines were published in April 2010. I present my reactions to the proposed Guidelines and discuss several caveats that courts, foreign antitrust agencies, and the business community should be aware of as they try to interpret what the proposed Guidelines suggest about appropriate antitrust policy.