The Antitrust Review of the Americas 2013

US: Mergers

30 July 2012

For decades, the received wisdom was that merger analysis always started with the definition of relevant product and geographic markets, and that the resolution of any challenged horizontal merger would require structural remedies with, at most, the rarest resort to behavioural remedies for vertical mergers. The 2010 Horizontal Merger Guidelines1 issued by both the DoJ and the FTC, and the more recent 2011 Remedies Guide2 issued by the DoJ, have begun to modify this received wisdom. Recent merger cases, and their resolution, show, however, that market definition still holds its often ‘critical’3 role in merger analysis, especially when cases head to court, even though the Guidelines relegate market definition to a supporting role. In contrast, with respect to the negotiation of remedies, where the agencies are less subject to judicial constraint, in a short time, the agencies have been able to build a respectable record of using behavioural remedies as some or all of the solution for challenged mergers, including horizontal mergers.

Interested in becoming a GCR author? Please contact our Insight Manager.

Get in touch