Do the Merger Guidelines Need Revision?
The merger guidelines should be revised, not only to provide clearer guidance, but because the current version makes it harder for the agencies to win cases when they do challenge a merger. The reason is that the guidelines often don’t fit actual agency practice or modern economic theory. For example, part of the reason the DOJ lost the Oracle/Peoplesoft merger case was that its guidelines on unilateral effects do not match modern practice or theory. Such a mismatch makes it harder to convince judges that merger enforcement satisfies traditional rule of law concerns about providing advance notice of legal standards that are clear enough to guide private conduct and meaningfully constrain legal discretion. Here are the areas on which I would focus.