Out with the Old, in with the New? Comparing the 1992 US Horizontal Merger Guidelines with the 2010 US Horizontal Merger Guidelines
| Author | Alison Knight |
| Position | Formerly Legal Adviser/Principal Case Officer of Mergers at the UK Office of Fair Trading |
| Pages | 80-92 |
[2011] Southampton Student Law Review
80
Vol. 1
Out with the Old, in with the New? Comparing the
1992 US Horizontal Merger Guidelines with the
2010 US Horizontal Merger Guidelines
Alison Knight
1
In 2010, new merger guidelines were adopted by the US antitrust agencies on
the assessment of mergers between competitors under competition law. This
paper crit ically compares such horizontal guidelines with their 1992
predecessor to analyse the extent to which there is continuity between the two.
It is argued that their approaches are not mutually exclusive. Rather, the new
guidelines can be viewed as retaining the spirit of the old; both are
revolutionary and controversial of their day in endorsing (albeit to different
extents) a place for modern economic learning and techniques in legal
assessment. The 2010 guidelines, however, go further in making transparent
the acceptance of merger-analytical practices focused on competitive effects
that have been employed by the antitrust agencies over the last two decades.
Although the full impact of the 2010 guidelines is yet to be realised, this paper
concludes that pivotal to their acceptance is the attitude of the US judiciary
who have so far shown reluctance to import explicitly and whole-heartedly the
language and evidence of economics into the realm of law.
Introduction
n August 2010, the US Department of Justice and the Federal Trade
Commission – together responsible for US antitrust law enforcement („the
Agencies‟) - released new horizontal merger guidelines („the 2010-
Guidelines‟).2 They outline their principal analytical framework and practices
regarding competitor-merger review, notably under the Clayton Act.3 This
reissue is the first for nearly 20 years, replacing the version issued in 1992
partially amended in 1997 (the „1992-Guidelines‟)4 heralded as „the blueprint‟
1 Formerl y Legal Adviser/ Principal Case Officer of Mergers at the UK Office of Fair Trading.
2 US Department of Justice & Federal Trade Commi ssion, Horizontal Merger Guidelines
(2010).
3 The Clayton Act (1914), secti on 7 prohi bits acquisitions from the effects of which „may be
substantially to lessen competition, or to tend to create a monopoly‟ regarding commerce in
the US.
4 U.S. Department of Justice & Federal Trade Commission, Horizontal Merger Guidelines
(1992, revised 1997).
I
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