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Ambiguity and discretion in the new guidelines: some implications for practitioners

Article Abstract:

The 1992 Horizontal Merger Guidelines from the Justice Dept and the FTC have some ambiguities which can be turned to the advantage of the merger. Opportunities exist during preliminary counseling of clients, when going before federal enforcement agencies and when involved in litigation against federal agencies. The discretionary and qualitative language of the guidelines allows for creative interpretation in litigation.

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The efficiencies defense for horizontal mergers: what is the government's standard?

Article Abstract:

There are alternative standards to those used by the government for evaluating an efficiencies defense against antitrust analysis of a horizontal merger. One alternative bases the standard on a deadweight loss due to price rises, and another alternative is the consumer surplus standard. These standards can be measured in a mathematical model. These alternative standards could affect antitrust policy.

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Overview of the 1992 Horizontal Merger Guidelines

Article Abstract:

The 1992 Horizontal Merger Guidelines issued by the Justice Dept and the FTC have three main goals. One goal is to integrate enforcement with analysis of market concentration. Another goal is to enable analysis of competition using either nonstructural or structural evidence. The third goal is to correct the standards for analysis of new entry to markets. The guidelines serve these goals well.

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