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DOJ and FTC Issue New Merger Guidelines; Commissioner Hates Them

Yesterday, the Department of Justice and the Federal Trade Commission released the long-awaited update to the Horizontal Merger Guidelines. And, as reported by the Blog of Legal Times, FTC Commissioner J. Thomas Rosch signed on to the new version with reservations -- to put it gently.

While the FTC's press release touts the new guidelines' ability to "give businesses a better understanding of how the agencies evaluate proposed mergers," Rosch, in a separately issued statement, was critical of not just the final product, but the entire process by which the guidelines were generated.

From the BLT:

"What [the antitrust] bar and their clients deserve is what these guidelines promise at the outset — namely, that they will be a complete and accurate description of what our enforcement staff considers in merger investigations and that they will be a helpful guide to courts,” wrote Rosch, a Republican and former partner at Latham & Watkins.”These guidelines are neither.”

Yikes. Rosch opines that too much influence was exerted by economists, and that, though public workshops were held during the review process, they were dominated by "members of the defense bar, academics, and other kindred souls," resulting in too much price-theory gobbledygook making the final cut.

No doubt the guidelines will be sliced and diced by the antitrust cognoscenti over the coming days and weeks, as the draft version was in April. So stay tuned.

Posted by Eric Lipman on August 20, 2010 at 12:07 PM | Permalink | Comments (1)


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