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Review Of 1992 Merger Guidelines Is A Once-In-A-Generation Opportunity

Posted  September 23, 2009

Antitrust practitioners that pass on the upcoming opportunity to comment on revising the 1992 Merger Guidelines will be missing an opportunity that comes once in a generation.

For 17 years now, the Horizontal Merger Guidelines jointly developed by the U.S. Department of Justice and Federal Trade Commission have been one of a few doctrinal pillars of the faith among antitrust practitioners, most notably with respect to market definition.  Since their promulgation in 1992, the Guidelines have survived two full presidential administrations that were diametrically opposed in their philosophies of merger and unilateral conduct enforcement, a remarkable testament to the Guidelines’ intellectual underpinnings and continuing relevance.

On September 22, 2009, the DOJ and FTC announced that they would jointly hold workshops in the coming months for the purpose of evaluating whether to revise the Guidelines and, if so, how.  In her speech to the Third Annual Georgetown Law Global Antitrust Enforcement Symposium, Assistant Attorney General and Head of the DOJ’s Antitrust Division, Christine Varney, stated that the workshops would likely discuss at least three broad topics:  market definition, market concentration, and competitive effects.

The first workshop is currently scheduled for December 3, 2009 in Washington, D.C.  It will be followed by workshops in Chicago, New York City, and San Francisco.  The final workshop will be held in Washington, D.C.

The FTC has posted questions for public comment here.  The FTC and DOJ are interested in receiving written comments from attorneys, economists, academics, consumer groups, the business community, and any other interested party.

Further details concerning the time and place of the workshops, filing comments, and requests to participate on workshop panels, can be found here.

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