Brown Shoe Versus the Horizontal Merger Guidelines

13 Pages Posted: 4 Feb 2011

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

Date Written: February 3, 2011


The new Horizontal Merger Guidelines, if treated by courts as a source of law, would reduce the discretion traditionally exercised by courts in defining relevant markets and market power in merger cases. This is an undesirable shift in the balance of power because courts have used the market power inquiry stage of merger analysis as a general checkpoint or weigh station for evaluating factors relevant to the welfare effects of a merger.

Keywords: horizontal merger guidelines, Clayton Act Section 7, Brown Shoe, market definition, market power, error cost analysis, relevant market, pricing power, industrial rationalization

JEL Classification: K21, K22, K23, K29

Suggested Citation

Hylton, Keith N., Brown Shoe Versus the Horizontal Merger Guidelines (February 3, 2011). Review of Industrial Organization, 2011, Boston Univ. School of Law Working Paper No. 11-05, Available at SSRN:

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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