Overview

On August 19, 2010, the DOJ and FTC released a comprehensive revision of the horizontal merger guidelines that had been issued almost two decades ago.

An overhaul was in order, since the agencies have not followed the prior guidelines for years.

The revised Guidelines better reflect current agency thinking, including a greater range of potentially actionable transactions and greater roles for analytical flexibility and agency judgment in assessing transactions. The more aggressive and flexible tone of the revised Guidelines is likely intended to help the agencies in litigation, where some courts have criticized the agencies for departing from the more structured approach of the prior guidelines.

However, since the agencies have been operating internally under the new models for some time, we expect no major change going forward in merger enforcement decision making.

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