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Judicial Response to the 2010 Horizontal Merger Guidelines

Author

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  • Carl Shapiro

    (University of California Berkeley)

  • Howard Shelanski

    (University of California Berkeley)

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

  • Carl Shapiro & Howard Shelanski, 2021. "Judicial Response to the 2010 Horizontal Merger Guidelines," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 58(1), pages 51-79, February.
    • Handle: RePEc:kap:revind:v:58:y:2021:i:1:d:10.1007_s11151-020-09802-x
    DOI: 10.1007/s11151-020-09802-x
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    References listed on IDEAS

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    1. Gilbert, Richard & Tom, Willard K, 2001. "Is Innovation King at the Antitrust Agencies? The Intellectual Property Guidelines Five Years Later," Department of Economics, Working Paper Series qt4mf5t2bm, Department of Economics, Institute for Business and Economic Research, UC Berkeley.
    2. Farrell Joseph & Shapiro Carl, 2010. "Antitrust Evaluation of Horizontal Mergers: An Economic Alternative to Market Definition," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 10(1), pages 1-41, March.
    3. Josh Lerner & Scott Stern, 2012. "The Rate and Direction of Inventive Activity Revisited," NBER Books, National Bureau of Economic Research, Inc, number lern11-1, May.
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    Cited by:

    1. Carl Shapiro, 2021. "Vertical Mergers and Input Foreclosure Lessons from the AT&T/Time Warner Case," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 59(2), pages 303-341, September.

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