After 13 years and many comments and public meetings, the U.S. Department of Justice and the Federal Trade Commission released their anxiously-awaited Horizontal Merger Guidelines yesterday. The public now has 30 days to provide further comments.
The Guidelines are a prime example of federal agencies’ ability to profoundly impact business conduct through guidance documents which don’t have the force of law. As noted in this story and numerous analyses by law firms, the new Guidelines seek to navigate the courts away from an issue which has proven to be a losing one for the federal government: how antitrust enforcers define the relevant market impacted by a merger. Dechert LLP’s Paul Denis and Paul Friedman delved deeply into this issue at a Washington Legal Foundation Web Seminar last September, The Whole Foods-Wild Oats Merger: Lessons from the Courtroom and the Consent Order.
The always insightful Truth on the Market has a short post up on the Guidelines’ release, with more from its analysts no doubt to come.