The Department of Justice and the Federal Trade Commission (FTC) today jointly released a Commentary on the Horizontal Merger Guidelines, which explains how the agencies have applied the Guidelines in the context of actual merger investigations. The release of this commentary is part of the agencies’ “ongoing efforts to increase the transparency of their decision-making processes.”
In the commentary’s introductory chapter, the agencies describe the fundamental legal principles that govern their merger analysis. The remaining chapters address market definition and concentration; the potential adverse competitive effects of mergers, including coordinated interaction and unilateral effects; entry conditions; and efficiencies. Throughout the commentary there are short summaries of actual merger investigations that are used for illustrative purposes.
The commentary highlights the "integrated approach to merger review" that the agencies apply in each case. That is, the investigating agency will not engage in a mechanical step-by-step analysis of a merger that begins with defining the relevant market and ends with efficiencies or the failing company defense. Rather, the agency focuses on the key inquiry—the likely competitive effects that will result from the merger under review—at every step of its investigation.
