The 2010 HMGs Ten Years Later: Where Do We Go From Here?

Forthcoming in the Review of Industrial Organization. Georgetown Law Faculty Publications and Other Works. 2285 (2020)

36 Pages Posted: 7 Jul 2020 Last revised: 9 Dec 2020

See all articles by Steven C. Salop

Steven C. Salop

Georgetown University Law Center

Fiona M. Scott Morton

Yale School of Management; National Bureau of Economic Research (NBER)

Date Written: December 1, 2020

Abstract

In this short article, which is part of a RIO Symposium on the Tenth Anniversary of the 2010 Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints which require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in which the under-enforcement bias might be corrected, including (among others) rolling back the increase in the HHI “red zone” thresholds; mandating anticompetitive presumptions for mergers with high GUPPIs, acquisitions of mavericks, and acquisitions by dominant firms; closer analysis of common ownership by financial funds; and expanded analysis of potential competition mergers.

Keywords: Merger Guidelines, Antitrust, litigation, competition policy, presumptions

Suggested Citation

Salop, Steven C. and Scott Morton, Fiona M., The 2010 HMGs Ten Years Later: Where Do We Go From Here? (December 1, 2020). Forthcoming in the Review of Industrial Organization. Georgetown Law Faculty Publications and Other Works. 2285 (2020), Available at SSRN: https://ssrn.com/abstract=3628548 or http://dx.doi.org/10.2139/ssrn.3628548

Steven C. Salop (Contact Author)

Georgetown University Law Center ( email )

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Fiona M. Scott Morton

Yale School of Management ( email )

New Haven, CT 06520
United States

National Bureau of Economic Research (NBER)

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

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