Werden and Froeb: The Conspicuous Silences of the Proposed Vertical Merger Guidelines

Gregory J. Werden & Luke M. Froeb February 6, 2020

Truth on the Market View Original Source

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The proposed Vertical Merger Guidelines provide little practical guidance, especially on the key issue of what would lead one of the Agencies to determine that it will not challenge a vertical merger. Although they list the theories on which the Agencies focus and factors the Agencies “may consider,” the proposed Guidelines do not set out conditions necessary or sufficient for the Agencies to conclude that a merger likely would substantially lessen competition. Nor do the Guidelines communicate generally how the Agencies analyze the nature of a competitive process and how it is apt to change with a proposed merger.

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