Review of Horizontal Merger Guidelines Likely to Result in Update: Antitrust Division Official

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

A joint review of the Horizontal Merger Guidelines by the federal antitrust agencies is likely to result in an update of the guidelines, said Molly S. Boast, Deputy Assistant Attorney General at the Department of Justice Antitrust Division, on February 8.

Boast made the remark during the Practising Law Institute’s “Antitrust & the Deal, 2010” program in New York City.

The Antitrust Division and the Federal Trade Commission are working together to determine whether the Guidelines (CCH Trade Regulation Reporter ¶13,104), which were issued in 1992 and revised in 1997 to add an efficiencies discussion, should be updated to reflect current practice and economic thinking.

The process has included five workshops, which were conducted over the last two months, as well as an internal review of staffers at the agencies.

A majority of the workshop participants and the staff—but not an overwhelming majority—have expressed a preference for an update, Boast noted. She did not offer a publication date for the update.

One of the goals of the guidelines is to provide transparency or insight into how the government conducts its merger analysis. According to Boast, the current guidelines do not reflect precisely how things are done at the agencies.

A consensus has developed around a need for a flexible analysis under the guidelines. There is a growing view that merger analysis should not be based on a rigid, sequential approach.Methods for determining market concentration could also be updated, according to Boast.

An update could revise the Herfindahl-Hirschman Index (HHI) thresholds to express accurately how the agencies use HHIs. There could be a move to deemphasize HHIs, the official suggested.