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DOJ, FTC to Explore Amending Merger Guidelines
The National Law Journal
September 23, 2009
The Department of Justice and the Federal Trade Commission announced on Tuesday that they will explore updating their horizontal merger guidelines, the first such change in 17 years.
Christine Varney, assistant attorney general for the Justice Department's Antitrust Division, said the government would hold a series of public workshops to assess potential changes to the guidelines, which antitrust enforcers use to measure the competitive effects of proposed mergers. Varney, who spoke at a Georgetown Law Center symposium on antitrust law Tuesday, said the assessment would examine whether the current guidelines accurately reflect agency practice.
"As the guidelines themselves state, they are not meant to be static documents fixing in stone the agencies' analytical framework," she said. "Instead, as the guidelines note in their opening section, they 'may be revised from time to time as necessary to reflect any significant changes in enforcement policy or to clarify aspects of existing policy.'"
Varney noted three main areas that the workshops would examine: market definition, market concentration and competitive effects. She singled out specific issues to be explored, such as how the agencies define geographic markets and how to recalibrate tools for measuring market concentration. (Read her entire comments.)
Varney said there was an urgent need to update the guidelines because, over time, judges have pointed to them as "persuasive authority." The Supreme Court, she noted, has not ruled on the merits of a merger in 35 years.
Jones Day partner David Wales, a former Justice Department and FTC antitrust official, said that he was "not totally surprised" by Tuesday's announcement, and that some changes were probably needed to keep the guidelines relevant. The way the government measures market concentration, for example, has fallen out of date, he said.
Still, Wales said any major changes to areas where the courts have ruled referencing the guidelines could be controversial. "Obviously the law is what the courts say it is, not the guidelines," he said. "But the guidelines have been cited by the courts."
First reported in The BLT: The Blog of Legal Times.
