Market definition continues to be a central issue in merger litigation despite the 2010 Merger Guidelines’ attempt to create an alternative, less market definition-reliant framework. Indeed, each complaint filed by the Federal Trade Commission and U.S. Department of Justice since those guidelines were issued in August 2010 has alleged product
and geographic markets, as agency officials indicated was likely when the revised guidelines were adopted. Given this focus on market definition at the litigation phase, it is not surprising that both agencies also continue to focus attention on market definition during the merger-review process. As a result, practitioners should do the same.
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