Recent Developments in China, the US and Europe
Edited by Michael Faure and Xinzhu Zhang
Chapter 11: Revising the Horizontal Merger Guidelines: Lessons from the US and the EU
Richard Gilbert and Daniel Rubinfeld* 11.1 INTRODUCTION The US Horizontal Merger Guidelines first promulgated in 1982 by the Antitrust Division of the Department of Justice and the Federal Trade Commission have proven to be very useful throughout the past two and half decades, and through several revisions.1 The use of merger guidelines in the European Union has been more recent – the origins go back to the issuance of the Guidelines in 1997, with revisions that were under discussion in 2002 when the European Commission published a draft Guidelines notice (the final notice of revision was published in 2004).2 In both the US and the EU the Guidelines have proven valuable to the parties involved in the merger process (and their experts) and to businesses that are contemplating potential mergers or acquisitions. The modes of analysis and the applications of the Guidelines in both the US and the EU have evolved over time and there has been substantial convergence. As a result, the Guidelines provide useful models for countries that are developing merger control procedures. Recently, the US Department of Justice and Federal Trade Commission have embarked on an effort to revise and update the US Horizontal Merger Guidelines. We believe that this is an auspicious time for suitable revisions to be made in the US and a valuable opportunity for other merger control authorities to evaluate their own merger guidelines. Moreover, we see substantial benefits to be achieved if there is convergence in the merger control processes of all...
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