The Federal Trade Commission and the Department of Justice's Antitrust Division are seeking comment on 20 questions concerning possible revisions to the guidelines they use to evaluate the competitive effects of proposed mergers.
The questions are aimed at gathering input for a series of public workshops to look at how to update their Horizontal Merger Guidelines, which set forth their enforcement policy concerning horizontal mergers and acquisitions.
The current joint Guidelines were issued in 1992 and were last revised in 1997. Joint commentary on the guidelines was issued in 2006.
Participants in the five workshops will be selected in part based on the comments they submit.
The agencies encourage commenters to respond to the questions from two perspectives: whether revisions in the areas raised in the questions could yield guidelines that more accurately describe actual agency practice, and whether revisions could lead to a more accurate and/or more efficient merger review process.
In announcing the initiative at a September antitrust enforcement symposium in Washington D.C., FTC Chairman Jon Leibowitz said the aim of the project is "to demystify the process and provide more accurate
guidance than practitioners and the courts have been getting from the guidelines to date."
Leibowitz said some of the areas the agencies will be looking at include: their use of direct evidence of anti-competitive effects as an indication that a merger may harm consumers, whether to clarify how the agencies use the hypothetical monopolist test to define markets, whether to update the description of how the agencies use concentration statistics like HHIs to understand the impact of a merger on the market, and whether to add remedies to the guidelines as the European Union has done.
Individuals and organizations can submit requests to participate as panelists. Prospective panelists for the first workshop to be held Dec. 3 in Washington should submit a statement by Nov. 9, 2009.
Full details can be found here.
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