A Year in Review: 2010 Horizontal Merger Guidelines

During the ennui that was last summer, when we went to press with our August 2010 column, the Department of Justice and the Federal Trade Commission (FTC) (collectively, the “agencies”) hadn’t yet issued the long-anticipated 2010 Revised Horizontal Merger Guidelines (“2010 Guidelines”). Somewhat fatuously, we suggested that “[t]he government still has time to make the better decision, by trashing the…[Revised Merger Guidelines].”¹ The 2010 Guidelines were issued the following week.

The 2010 Guidelines eschewed the traditional market definition-centric merger analysis and substituted a cluttered diagnostic tool box from which the agencies could pick and choose as it fit their enforcement purposes.² One significant question surrounding the 2010 Guidelines has been whether courts will adopt the agencies’ view that market definition and the ensuing assessment of market shares and concentration is useful only “to the extent it illuminates the merger’s likely competitive effects,”³ rather than as a necessary predicate for Section 7 analysis. So far, the 2010 Guidelines’ reshuffled approach to merger analysis has been DOA at the federal bench.