Consumer Federation of America
Horizontal Merger Guidelines Review Project: Proposed New Horizontal Merger Guidelines
For a decade or more, the agencies have routinely approved mergers that blatantly violate the Guidelines based on theoretical grounds that do not reflect the reality of the markets in which mergers are taking place. The proposed revision to the Guidelines represents a potentially important step in addressing both of the problems. They propose to rescue antitrust practice from the stranglehold of pure theory and ground the Guidelines in reality. By doing so, they create the opportunity to ensure that antitrust practice reflects the Guidelines. Ultimately, the proof of the pudding will be in the eating. Future actions in merger review should reflect the Guidelines more closely. The rewrite of the Merger Guidelines is a step in the right direction, particularly since it emphasizes empirical reality. Viewing the rewrite of the Guidelines through this lens, it is remarkable how much they could accomplish, although the value of the rewrite can only be assessed as antitrust authorities bring cases and make decisions. The exhibit provides running commentary on how the specific approaches of the revised Guidelines can address the flaws that have afflicted recent antitrust practice. It is clear from this analysis that the revisions open the door to a vast improvement in merger review from the consumer point of view, which should be the focal point of analysis. The text of the attached comments summarizes the broad themes we see in the revision.