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The Sound of One Hand Clapping: The 2010 Merger Guidelines and the Challenge of Judicial Adoption

Judd E. Stone II

International Center for Law and Economics

Joshua D. Wright

Federal Trade Commission; George Mason University School of Law

January 20, 2011

George Mason Law & Economics Research Paper No. 11-05
Review of Industrial Organization, Forthcoming

There is ample justification for the consensus view that the Horizontal Merger Guidelines have proven one of antitrust law’s great successes in the grounding of antitrust doctrine within economic learning. The foundation of the Guidelines’ success has been its widespread adoption by federal courts, which have embraced its rigorous underlying economic logic and analytical approach to merger analysis under the Clayton Act. While some have suggested that the Guidelines’ most recent iteration might jeopardize this record of judicial adoption by downplaying the role of market definition and updating its unilateral effects analysis, we believe these updates are generally beneficial and include long-overdue shifts away from antiquated structural presumptions in favor of analyzing competitive effects directly where possible. However, this article explores a different reason to be concerned that the 2010 Guidelines may not enjoy widespread judicial adoption: the 2010 Guidelines asymmetrically update economic insights underlying merger analysis. While the 2010 Guidelines’ updated economic thinking on market definition and unilateral effects will likely render the prima facie burden facing plaintiffs easier to satisfy in merger analysis moving forward, and thus have significant practical impact, the Guidelines do not correspondingly update efficiencies analysis, leaving it as largely as it first appeared 13 years earlier. We discuss two well-qualified candidates for "economic updates" of efficiencies analysis under the Guidelines: (1) out-of-market efficiencies and (2) fixed cost savings. We conclude with some thoughts about the implications of the asymmetric updates for judicial adoption of the 2010 Guidelines.

Number of Pages in PDF File: 24

Keywords: Antitrust Modernization Committee, Brown Shoe, Carl Shapiro, Donald Turner, F.T.C. v. Staples, GUPPI, gross upward pricing pressure index, Kathleen Bradish, Leah Brannon, Philadelphia National Bank, Section 7, Von’s Grocery

JEL Classification: K21, L41

Accepted Paper Series

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Date posted: January 22, 2011  

Suggested Citation

Stone, Judd E. and Wright, Joshua D., The Sound of One Hand Clapping: The 2010 Merger Guidelines and the Challenge of Judicial Adoption (January 20, 2011). George Mason Law & Economics Research Paper No. 11-05; Review of Industrial Organization, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1744299

Contact Information

Judd E. Stone II
International Center for Law and Economics
United States
Joshua D. Wright (Contact Author)
Federal Trade Commission ( email )
601 New Jersey Ave., NW
Washington, DC 20580
United States
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
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