The Merger Guidelines Commentary: Practical Guidance and Missed Opportunities

Historically, the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission have provided only limited details of their merger enforcement policies. While the various iterations of the Merger Guidelines1 provided insight into the analytical framework the agencies use to review mergers, there was little guidance illustrating how agency staff and decision makers weighed specific, but sometimes conflicting factors. FTC and Antitrust Division complaints were largely pro forma in their recitation of market definition and competitive effects, while ignoring efficiencies and conflicting evidence. FTC Analyses to Aid Public Comment and DOJ Tunney Act disclosures rarely went beyond the recitations in the complaints. The Bush Administration’s antitrust enforcers, led in the first instance by former FTC Chairman Timothy Muris, have made a noticeable effort to improve transparency in merger enforcement by releasing: Several explanatory press releases or closing statements setting out the rationale for terminating certain merger investigations without enforcement action.2 Guidelines and other materials outlining their policies toward merger remedies.3 FTC statements containing detailed responses to public comments on proposed consent agreements.4 FTC merger best practices reports, including one by the Bureau of Economics.5