FTC, Justice Department to Explore Updating Merger Guidelines

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The Horizontal Merger Guidelines, which are used by the federal antitrust agencies to evaluate the potential competitive effects of mergers and acquisitions, will be the subject of a series of upcoming public workshops.

The goal of the workshops will be to determine whether the Merger Guidelines accurately reflect the current practice at the Department of Justice and the FTC as well as to take into account legal and economic developments that have occurred since the last significant revision of the Merger Guidelines in 1992 (Trade Regulation Reporter ¶13,104). The agencies announced the workshops and request for public comment on September 22.

“The bulk of the Merger Guidelines is over 17 years old,” said FTC Chairman Jon Leibowitz in announcing the review. “The 1992 Guidelines explicitly stated that they would be revised from time to time. We think the time has come to do that.”

“In light of legal and economic developments that have occurred since the last major revision of the guidelines, it is an appropriate time for the antitrust agencies to conduct a review of the guidelines to determine whether any revisions should be made to better protect American consumers and businesses from anticompetitive mergers,” said Christine A. Varney, Assistant Attorney General in charge of the Department of Justice Antitrust Division.

“Having guidelines that offer more clarity and better reflect agency practice provides for enhanced transparency and gives businesses greater certainty when making merger decisions, resulting in a more competitive marketplace that benefits consumers,” she noted.

The first workshop will be held in Washington, D.C., on December 3, 2009, followed by workshops in Chicago, New York City, and San Francisco. A final workshop also will be held in Washington, D.C. in January 2010.

A September 22 news release on the workshops appears here on the FTC website. Further details appear here.