1984 Department of Justice Merger Guidelines (Excerpts)

• Pages: 337-344

337

1984 DEPARTMENT OF JUSTICE MERGER

GUIDELINES (EXCERPTS)

1. Purpose and Underlying Policy Assumptions

1.0 These Guidelines state in outline form the present enforcement of

the U.S. Department of Justice (“Department”) concerning acquisition

and mergers (“mergers”) subject to section 7 of the Clayton Act1 or to

section 1 of the Sherman Act.2 They describe the general principles and

specific standards normally used by the Department in analyzing

mergers.3 By stating its policy as simply and clearly as possible, the

Department hopes to reduce the uncertainty associated with enforcement

of the antitrust laws in this area.

Although the Guidelines should improve the predictability of the

Department’s merger enforcement policy, it is not possible to remove the

exercise of judgment from the evaluation of mergers under the antitrust

laws. Because the specific standards set forth in the Guidelines must be

applied to a broad range of possible factual circumstances, strict

application of those standards may provide misleading answers to the

economic questions raised under the antitrust laws. Moreover, the

picture of competitive conditions that develops from historical evidence

may provide an incomplete answer to the forward-looking inquiry of the

Guidelines. Therefore, the Department will apply the standards of the

Guidelines reasonably and flexibly to the particular facts and

circumstances of each proposed merger.

1. 15 U.S.C. § 18 (1982). Mergers subject to section 7 are prohibited if their

effect “may be substantially to lessen competition, or to tend to create a

monopoly.”

2. 15 U.S.C. § 1 (1982). Mergers subject to section 1 are prohibited if they

constitute a “contract, combination . . . , or conspiracy in restraint of trade.”

3. They update the Guidelines issued by the Department in 1982. The

Department may from time to time revise the Merger Guidelines as

necessary to reflect any significant changes in enforcement policy or to

clarify aspects of existing policy.