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
Date Written: December 1, 2020
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: Suggested Citation