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Cory Capps and Leemore Dafny: Conversations on the draft Merger Guidelines

Cory Capps, Leemore Dafny
August–September 2023

The Department of Justice and Federal Trade Commission jointly released their draft Merger Guidelines in July. Partners Cory Capps and Leemore Dafny wrote about the Guidelines as part of a two-round online symposium hosted by ProMarket. In the first article, they agreed that the draft guidelines give an indication that the Agencies intend to investigate more transactions and file more challenges. Dr. Dafny noted that there are some areas where the draft Guidelines reflect a change in the Agencies’ public stance, in particular serial acquisitions and non-horizontal mergers. Drs. Capps and Dafny discussed serial acquisitions and cross-market (non-horizontal) mergers and shared some concern that the Guidelines would benefit from some guardrails to enhance the effect on the latter. Read the article here.

In their second article, Drs. Capps and Dafny reviewed what other experts have said about the draft Guidelines in this Roundtable discussion. Dr. Capps identified some themes in the responses and concerns of Roundtable members. They both spoke about which Guidelines they believe are likely to receive priority in the next version. They then addressed the reduced emphasis on economic arguments in the main text of the draft Guidelines, agreeing that text focuses on case law while the economics appendices on analytical tools the Agencies use seem to align generally with the 2010 Guidelines. Dr. Dafny concludes, “Anchoring the Guidelines in the economics should strengthen enforcement of competition statutes and better enable interpretations that match the evolving economy.” The second article is available here.

These conversations are part of a published symposium during which 13 experts provided comments on the draft guidelines and responded to each other’s ideas. Information on the symposium is available here, as is a list of discussants.

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