Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS NEWS: FTC Chairwoman reflects on Horizontal Merger Guidelines, (Oct 1, 2015)

By Greg Hammond, J.D.

In delivering the keynote address at the Ninth Annual Global Antitrust Enforcement Symposium at Georgetown University Law Center on Tuesday, FTC Chairwoman Edith Ramirez discussed how the Guidelines have been applied in the United States and how they fit into the international competition landscape.

Putting the Guidelines in historical context, Ramirez noted that the 2010 revisions made clear that “merger analysis is a flexible and fact-specific process in which the agencies apply a range of analytical tools to reasonably available evidence to evaluate the likely competitive impact of a transaction.” This was a departure from the 1992 Guidelines, which suggested that merger analysis was the mechanical application of a series of linear steps.

The 2010 revisions, according to Ramirez, increased emphasis on competitive and unilateral effects, which the Commission was able to put to use in analyzing the Dollar Tree/Family Dollar and St. Luke’s mergers. In addition, the Chairwoman noted that the “2010 Guidelines require efficiencies to be merger-specific, not vague or speculative, and cognizable, meaning they can be verified and do not arise from anticompetitive reductions in output or service.”

Ramirez also suggested that similar trends have been observed internationally, and that there is a high degree of convergence in the overall analytical framework—a shift towards a more effects-based analysis, increased focus on unilateral effects, and greater use of econometric tools. She cited similarities in regulations from the European Commission, the Canadian Competition Bureau, the Bundeskartellamt, as well as competition agencies in Chile, France, Korea, Japan, Mexico, New Zealand, and Turkey.

“Internationally, as the number of competition agencies has multiplied, the 2010 Guidelines have served as a means of sharing our current thinking on merger review and enforcement with our sister agencies around the globe,” Ramirez stated. “While merger guidelines around the world may reflect some differences, there is a great deal of convergence at the core, where the focus is on market power and competitive effects. That is something that we should celebrate.”

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