The first year of the second decade of the 21st century has been a surfeit of antitrust evolution and devolution. Our column can touch only a few of the panoply of antirust stuff1 that occurred during the departing year. However, as history is not fact but perception, we leave to you an Infinite Jest2 to ponder.3
Perception and Guidelines
Last month, Sharis A. Pozen, acting assistant attorney general of the Antitrust Division of the U.S. Department of Justice, reflected on the Antitrust Division’s experience applying the 2010 Revised Horizontal Merger Guidelines (RMG) to assess the competitive effects of proposed acquisitions. First, Ms. Pozen recited the party line that “[t]he 2010 Guidelines stated that merger analysis ‘need not start with market definition.’” She also invoked the new liturgy that “the market definition process is not isolated from the other analytical components in the Guidelines and ‘the agencies do not settle on a relevant market definition before proceeding to address other issues.’ This flexibility is a matter of efficiency.”
