Recommendations for revisions to the draft merger guidelines

September 14, 2023
IP litigation and damages

In this paper, Professor Shapiro urges the Agencies to make major revisions to the draft Merger Guidelines before finalizing them. Major revisions are needed (1) to clarify that the goal of merger enforcement is to prevent harms to customers and suppliers from enhanced market power, (2) to strengthen rather than weaken horizontal merger enforcement, and (3) to avoid interfering with beneficial non-horizontal mergers. Without major revisions, these Merger Guidelines would make merger enforcement less effective and harm the US economy. The recommendations are presented in three groups: (a) overall recommendations, which apply to the general structure and approach taken in the draft Merger Guidelines; (b) recommendations relating to horizontal mergers; and (c) recommendations relating to non-horizontal mergers.

Read the submission.

Professor Shapiro also recently published two comments on the draft Merger Guidelines as part of the ProMarket Merger Guidelines Symposium.

Why dropping market power from the merger guidelines matters

The draft announces a dramatic shift in merger policy: it abandons the focus on market power that has been fundamental to all merger guidelines for several decades. As a result, the framework it offers for reviewing mergers is disconnected from the central harm that merger control seeks to prevent, namely harm to consumers caused by a lessening of competition.

Read the article here.

How would these draft Guidelines work in practice?

In this this piece, Professor Shapiro focuses on how changes proposed in the draft guidelines would actually work in practice under current law and  builds on his Round One submission, which expressed concern about the Agencies abandoning the central goal of protecting customers from mergers that harm them due to enhanced market power.

Read the article here.

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