Three Key Principles for Revising the Horizontal Merger Guidelines

The analytical framework of the Horizontal Merger Guidelines, first introduced by Bill Baxter in 1982, has been adopted by numerous Assistant Attorney Generals and Federal Trade Commission Chairmen of both political parties. For example, former Assistant Attorney General Charles James called the 1982 Merger Guidelines “Giant Steps” in the development of antitrust analysis, with no other policy document “more enduring or far-reaching” and past FTC Chairman Robert Pitofsky, stated that “the guideline process, in many ways, has had the most important influence on American antitrust policy in the last fifty years.” We agree with these distinguished observers that the Guidelines' influence is (rightly) considerable; this influence extends to the federal courts, foreign competition agencies, and state enforcement and regulatory agencies in the United States