The U.S. Horizontal Merger Guidelines After One Half Century

• Author: Gilbert B. Becker
• DOI: 10.1177/0003603X18756147
• Published date: 01 March 2018
• Date: 01 March 2018
• Subject Matter: Articles

Article

The U.S. Horizontal Merger

Guidelines After One Half

Century: Three Steps Forward

and One Step Back

Gilbert B. Becker*

Abstract

The U.S. antitrust agencies’ Horizontal Merger Guidelines are approaching their half century mark,

having progressed through three earlier versions to their current 2010 form. Recent reports promote

the contention that the enhanced sophistication and transparency of the newer versions have led to

improved policy results. This study questions this conclusion by examining recent retrospective

merger case evidence as well as agency policy and practices, in light of long-held Supreme Court dicta.

Keywords

Antitrust, horizontal merger guidelines

I. Introduction

Over a nearly 50-year span, the U.S. antitrust agencies have developed four merger policy guideline

statements designed to inform the business community and general public of the current interpretation

of Section 7 of the Clayton Act, and the prevailing agencies’ intentions regarding enforcement. While

significant changes have occurred across these four statements, one common thread is clear: that with

each iteration, the Horizontal Merger Guidelines (Guidelines) have become progressively more

sophisticated in their economic analysis of the potential competitive effects of mergers being exam-

ined. This study examines the question of whether the enhanced sophistication of the more modern

Guidelines has added a significant positive contribution to merger policy. A description of the chal-

lenges facing the modern Guidelines is presented in Section II. Section III provides an alternative view

of the Guidelines’ past success, and a proposal toward the redesign of the Guidelines. Part IV offers

some concluding ideas.

*Department of Economics and Business, Saint Anselm College, Manchester, NH, USA

Corresponding Author:

Gilbert B. Becker, Department of Economics and Business, Saint Anselm College, Manchester, NH 03103, USA.

Email: gbecker@anselm.edu

The Antitrust Bulletin

2018, Vol. 63(1) 137-151

ªThe Author(s) 2018

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DOI: 10.1177/0003603X18756147

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