In two rounds, 12 antitrust experts will provide their comments on the draft Merger Guidelines and respond to each other’s comments.
On July 19, the United States Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly released their draft Merger Guidelines. The Merger Guidelines clarify and guide how the DOJ Antitrust Division and FTC (the Agencies) review mergers and acquisitions for possibly anticompetitive outcomes. The DOJ first released Merger Guidelines in 1968. The Agencies most recently updated the guidelines for horizontal mergers (mergers and acquisitions between firms operating in the same industry) in 2010. The Agencies most recently updated their guidelines for vertical mergers (mergers and acquisitions between firms producing different goods and services along the same supply chain) in 2020. The new Guidelines address both horizontal and vertical mergers.
The Merger Guidelines don’t just outline how the Agencies will review prospective mergers and acquisitions. They also influence how firms pursue these business decisions and how courts adjudicate them. The Merger Guidelines can have a tremendous impact on the design and performance of industry and the broader economy, consequently influencing product price and quality, innovation, and labor wages, among other economic and political considerations. Debates about antitrust often occur beyond the view of ordinary Americans, but everyone experiences its consequences.
The Agencies released the guidelines with a 60-day period for public comments. In response, ProMarket will host a two-round symposium over the next few weeks in which 12 antitrust experts will provide their comments on the draft Merger Guidelines and discuss each others’ ideas. We are grateful to the participants for their time and contributions. We also invite our readers to write to us with their own ideas about the draft Merger Guidelines or with their own responses to our participants’ comments. You can write to us at firstname.lastname@example.org. Please see the below attachment for our writing guidelines.
ProMarket Merger Guidelines Symposium Participants:
Cory Capps, Bates White LLC
Dennis Carlton, University of Chicago Booth School of Business
Leemore Dafny, Harvard Business School
Eleanor Fox, New York University School of Law
Herbert Hovenkamp, University of Pennsylvania Carey Law School
Randal Picker, University of Chicago Law School
Eric Posner, University of Chicago Law School
Steven Salop, Georgetown University Law Center
Bilal Sayyed, TechFreedom and George Mason University Antonin Scalia Law School
Carl Shapiro, University of California, Berkeley, Haas School of Business
Jennifer Sturiale, Widener University Delaware Law School
Zephyr Teachout, Fordham University School of Law