Revising the Horizontal Merger Guidelines: Lessons from the E.U. and the U.S.

Posted by D. Daniel Sokol

Richard J. Gilbert, University of California, Berkeley - Department of Economics and Daniel L. Rubinfeld, University of California at Berkeley - School of Law, NYU Law School discuss Revising the Horizontal Merger Guidelines: Lessons from the E.U. and the U.S.

ABSTRACT: Recently, the U.S. Department of Justice and Federal Trade Commission have embarked on an effort to revise and update the U.S. Horizontal Merger Guidelines. here is substantial overlap between the U.S. and E.U. Guidelines, which makes a proposal for U.S. revisions immediately applicable to the E.U. and elsewhere. The U.S. Merger Guidelines can be revised in light of the learning of economists and lawyers in the past two decades to emphasize the importance of competitive effects analysis in merger evaluation and the forces that drive innovation. The Guidelines should also note that once a competitive effects analysis has been completed, it is possible to “back out” a relevant market (or markets) that is consistent with that competitive effects analysis.