The 2010 HMGs Ten Years Later: Where Do We Go From Here?

In this article, which is part of the Symposium on the Tenth Anniversary of the 2010 Horizontal Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints that require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in which the under-enforcement bias might be corrected, including (among others): rolling back the increase in the HHI red zone thresholds; mandating anticompetitive presumptions for mergers with high GUPPIs, acquisitions of mavericks, and acquisitions by dominant firms; closer analysis of common ownership by financial funds; and expanded analysis of potential competition mergers.

Automated summary

The article suggests improvements to address the issue of under-enforcement in horizontal merger policy, such as rolling back the increase in the HHI red zone thresholds, mandating anticompetitive presumptions, closer analysis of common ownership by financial funds, and expanded analysis of potential competition mergers.