Although the DOJ and the Federal Trade Commission issued revised Horizontal Merger Guidelines
in 2010, the DOJ has confirmed that its Bank Merger Guidelines
, which were issued in 1995, were not modified.
Under DOJ/FTC's Horizontal Merger Guidelines
, a market is considered "moderately concentrated" if the HHI is between 1,500 and 2,500, and "highly concentrated" if the HHI is above 2,500 (U.
The draft Media Merger Guidelines
and details regarding the consultation process can be found here: Draft Media Merger Guidelines
Nevertheless, the structure/conduct/performance paradigm, refined but not rejected by the 1982 Horizontal Merger Guidelines
, continued to carry the day.
amp; FTC, HORIZONTAL MERGER GUIDELINES
[section][section] 8, 12 (2010).
Commissioner Wright challenges his colleagues' claims of potential coordinated effects in the Lafarge, Holcim review, pointing to three Merger Guidelines
"conditions that must each be satisfied to support [such a] theory: (1) a significant increase in concentration, leading to a moderately or highly concentrated market, (2) a market vulnerable to coordinated conduct, and (3) a credible basis for concluding a transaction will enhance that vulnerability.
According to the Merger Guidelines
, market definition plays two roles: it "helps specify the line of commerce and section of the country in which the competitive concern arises" and it "allows the Agencies to identify market participants and measure market shares and market concentration.
There is one important exception to the foregoing critique of conventional market power measurement: the structuralist approach to horizontal merger review, especially that which prevailed under the Horizontal Merger Guidelines
in place between 1992 and 2010, (31) correctly conceived of the market power relevant to antitrust analysis as the delta between the pre-merger market condition and the post-merger condition.
Those new merger guidelines
might have been one factor in persuading the DoJ and six state attorneys generals to federal district court in August to block the US Airways/American merger.
In fact, numerous judicial decisions and recent changes to the Merger Guidelines
as well as the Antitrust Division Policy Guide to Merger Remedies have seemed to tip their hat to the idea that market participants do not always act as perfect expected-utility maximizers.
The paper says that under merger guidelines
and antitrust law, merging parties carry the burden of showing "extraordinary" efficiencies to offset competitive harm, and that no such justification exists in this case.
This bias in favor of harms over efficiencies is reflected in the text of the Horizontal Merger Guidelines