The Merger Guidelines Commentary: Practical Guidance and Missed Opportunities

Abstract

Historically, the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission have provided only limited details of their merger enforcement policies. More recently, the agencies have made a noticeable effort to improve transparency in merger enforcement, including releasing a Commentary on the 1992 Horizonal Merger Guidelines. The Commentary, which was released in March 2006, provides substantial insight into the application of the theoretical framework of the Guidelines. In this article, we identify and discuss key lessons from the Commentary and highlight those areas where the Commentary appears to be inconsistent with current agency practice or the case law. We conclude by identifying a few missed opportunities.

Keywords: merger enforcement, FTC, Antitrust Division, Merger Guidelines

JEL Classification: K21, L41