We’re going to start this month’s column with a question intended to measure your “2010 Revised Merger Guidelines IQ.” It’s a simple over-under, before-and-after question. First, the baseline.
In August 2010, after years of Sturm und Drang and months of hearings and speeches, the Department of Justice and Federal Trade Commission (FTC) issued Revised Merger Guidelines (RMG). Generally, the guidelines reject the use of a stepwise approach to merger analysis, (i.e., five-step inquiry found in the prior versions of the merger guidelines and adopted by the courts). The guidelines propound that “market definition is not an end in itself: it is one of the tools the agencies use to assess whether a merger is likely to lessen competition” and expressly state that the “agencies’ analysis need not start with market definition.” Furthermore, the guidelines condone the possibility that direct effects evidence can imply a market limited only to the merging firms’ products, and support a challenge irrespective of the merging firms’ combined market share.
