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Agency Character and Character of Agency Guidelines: An Historical and Institutional Perspective


Hillary Greene


University of Connecticut School of Law; UC Berkeley School of Law; Fung Institute, UC Berkeley College of Engineering


Antitrust Law Journal ,Vol. 72, p. 1039, 2005

Abstract:     
Though antitrust guidelines have become commonplace, their approach was novel when first introduced. In a 1964 front-page article entitled, Industries Will Get Merger Guidelines, The New York Times observed, 'An entirely new approach to the enforcement of the antitrust laws is about to be attempted by the Federal Trade Commission.' Similarly, the American Bar Association's 1968 Antitrust Developments treatise described these first antitrust agency guidelines as a new method to advise businessmen about how the FTC would gauge the competitiveness of mergers.

In the nearly forty years since the introduction of the first merger guidelines, the federal antitrust agencies have issued numerous additional guidelines. Nearly all of those promulgated or revised over the last decade and a half have been joint efforts between the FTC and the U.S. Department of Justice. However, the agencies' respective entrances into this policymaking realm were not only separate but also distinctive.

This essay explores the FTC's evolving approach to antitrust guidelines, beginning with an overview of the general context in which the FTC first introduced guidelines as an antitrust policy tool. The FTC's merger guidelines can be roughly divided into three successive waves: industry- specific; general; and jointly promulgated with the DOJ. What emerges is a picture of guidelines as a dynamic institution along many dimensions, including content, form, and manner of promulgation. This essay explores some of the FTC's unique institutional features that likely contributed to the particular contours of the agency's various guidelines.

Number of Pages in PDF File: 18

Keywords: antitrust, FTC, federal trade commission, law

JEL Classification: K00

Accepted Paper Series


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Date posted: May 6, 2008 ; Last revised: August 15, 2011

Suggested Citation

Greene, Hillary, Agency Character and Character of Agency Guidelines: An Historical and Institutional Perspective. Antitrust Law Journal ,Vol. 72, p. 1039, 2005. Available at SSRN: http://ssrn.com/abstract=1128263

Contact Information

Hillary Greene (Contact Author)
University of Connecticut School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
339-203-0931 (Phone)
UC Berkeley School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
339-203-0931 (Phone)
Fung Institute, UC Berkeley College of Engineering ( email )
Berkeley, CA 94720-1712
United States
339-203-0931 (Phone)
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