In August, the Division and the Federal Trade Commission issued revised Horizontal Merger Guidelines. The revised guidelines reflect an extensive effort to improve the transparency of merger reviews. The Division always strives to employ state of the art techniques in its analysis of mergers, and the Division’s toolkit for merger analysis has evolved substantially over the roughly two decades since the previous merger guidelines were initially crafted. The Division and the FTC solicited public comments and conducted workshop discussions across the country to develop a more transparent description of current practice than the specific analytic framework described in the 1992 Guidelines.
For the first time, the Horizontal Merger Guidelines describe a variety of sources of evidence that are examined in merger reviews. They also describe a number of different analytic techniques that are commonly used today with examples to illustrate how these are used in practice. Recognizing that the toolkit of antitrust analysis will likely continue to evolve, the new Guidelines outline the framework of the Division’s analysis in terms of the principles being addressed. By describing not only what the Division does in a merger review but why, these new Guidelines should provide an unprecedented level of transparency that will remain relevant even as the Division continues to push the frontier of analytic techniques.