The new U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines attempt to reshape antitrust merger analysis, going beyond the agencies’ primary objective of more closely tracking what they actually do in practice. Excised from the 2010 guidelines is the familiar five-step structure that made the predecessor 1992 Horizontal Merger Guidelines so popular with the courts and served as the model for merger guidelines around the world. Flexibility for the agencies has increased while predictability for the merging parties has decreased. At the same time, the agencies have signaled a sharpened focus on issues of proximity. Understanding how the notion of proximity might be applied in different market circumstances is likely to be the key to reducing the uncertainty inherent in any new guidelines, and particularly pronounced in this revision.
The most fundamental change in the 2010 guidelines is the abandonment of the five-step structure. Each step in the 1992 guidelines was necessary to the analysis, and together the five steps were sufficient to establish that a merger might substantially lessen competition.
