Judicial Response to the 2010 Horizontal Merger Guidelines

25 Pages Posted: 1 Feb 2021

See all articles by Carl Shapiro

Carl Shapiro

University of California, Berkeley - Haas School of Business

Howard A. Shelanski

Georgetown University

Date Written: November 22, 2020

Abstract

We study how the courts have responded to the 2010 Horizontal Merger Guidelines issued by the U.S. Department of Justice and the Federal Trade Commission. Looking at decided cases, we find that both the government and merging parties rely on the 2010 Guidelines in presenting their cases, each side respectively arguing that it should win if the court properly follows them. The 2010 Guidelines had the strongest effect on the case law in the area of unilateral effects, where a number of courts have embraced them in ways that clearly depart from earlier decisions. The case law now exhibits much greater receptivity to a government showing that the merger will lead to higher prices simply due to the loss of direct competition between the two merging firms. The courts also have followed the 2010 Guidelines by more willingly defining markets around targeted customers. We do not detect any effect on decided cases of the higher concentration thresholds found in the 2010 Guidelines. Both the average pre-merger level of market concentration and the average increase in market concentration alleged by the government in litigated cases to date declined after 2010.

Suggested Citation

Shapiro, Carl and Shelanski, Howard A., Judicial Response to the 2010 Horizontal Merger Guidelines (November 22, 2020). Available at SSRN: https://ssrn.com/abstract=3735487 or http://dx.doi.org/10.2139/ssrn.3735487

Carl Shapiro (Contact Author)

University of California, Berkeley - Haas School of Business ( email )

545 Student Services Building, #1900
2220 Piedmont Avenue
Berkeley, CA 94720
United States
510-642-5905 (Phone)

HOME PAGE: http://faculty.haas.berkeley.edu

Howard A. Shelanski

Georgetown University ( email )

Washington, DC 20057
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
91
Abstract Views
265
rank
338,285
PlumX Metrics