Download Free The New United States Horizontal Merger Guidelines Book in PDF and EPUB Free Download. You can read online The New United States Horizontal Merger Guidelines and write the review.

This article reviews the new Horizontal Merger Guidelines released on August 19, 2010, by the United States Department of Justice, through its Antitrust Division, and the Federal Trade Commission. The United States' New Horizontal Merger Guidelines converge towards and closely mimic their European counterparts. Indeed, the New Guidelines differ dramatically from their 1992 predecessors, and signal an American competition theory counterrevolution. First, they reveal a commitment towards more aggressive horizontal merger enforcement driven by a renewed emphasis on the incipiency standard. Second, they set out a less formulaic and rigid review methodology, which the Agencies hope will prove to be more litigation friendly, as they pursue enforcement cases in American courts. And third, they indicate heightened concerns about potential unilateral effects, including exclusionary conduct, and impacts on non-price competition such as quality, variety, and innovation. When the New Guidelines are systematically compared side by side to the EC's, the resemblances are striking. Indeed, the New Guidelines more closely resemble the EC's than they do their 1992 predecessors. It can be fairly concluded that the New Guidelines' drafters were heavily influenced by, and paid close attention to, the EC's guidelines. However, it is unclear whether the New Guidelines will survive a conservative administration, or how they will be accepted and interpreted by the American courts.
These Guidelines outline the principal analytical techniques, practices, and the enforcement policy of the Department of Justice and the Federal Trade Commission (the "Agencies") with respect to mergers and acquisitions involving actual or potential competitors ("horizontal mergers") under the federal antitrust laws. The relevant statutory provisions include Section 7 of the Clayton Act, 15 U.S.C. § 18, Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Most particularly, Section 7 of the Clayton Act prohibits mergers if "in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." The Agencies seek to identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that are either competitively beneficial or neutral. Most merger analysis is necessarily predictive, requiring an assessment of what will likely happen if a merger proceeds as compared to what will likely happen if it does not. Given this inherent need for prediction, these Guidelines reflect the congressional intent that merger enforcement should interdict competitive problems in their incipiency and that certainty about anticompetitive effect is seldom possible and not required for a merger to be illegal.