The issuance of new horizontal merger guidelines is the most significant merger enforcement achievement of the FTC and the U.S. Department of Justice, Antitrust Division under the Obama Administration to date.  The new guidelines have been updated to reflect developments in agency practice over the past two decades and, for the first time since the 1984 merger guidelines, contain provisions that address mergers involving potential competitors.  However, while the Agencies are explicit in placing potential competition within the scope of the new Guidelines, the Guidelines themselves offer relatively little guidance regarding the approach parties can expect to be taken by the government in evaluating transactions between potential competitors.     

Sean Royall and Adam Di Vincenzo of Gibson Dunn are co-authors of the attached article, "Evaluating Mergers Between Potential Competitors Under the New Horizontal Merger Guidelines," which examines how potential competition issues fit within the analytical framework of the new merger guidelines and offers practical considerations for businesses evaluating transactions that may involve potential competition issues. 

Reprinted with permission from Antitrust, Vol. 25, No. 1 (Fall 2010), © 2010 the American Bar Association.

Gibson Dunn lawyers are available to assist in addressing any questions you may have about these issues.  Please contact the Gibson Dunn lawyer with whom you work, any member of the firm's Antitrust and Trade Regulation Group, or the following article co-authors:

M. Sean Royall (214-698-3256, sroyall@gibsondunn.com) 
Adam Di Vincenzo (202-887-3704, adivincenzo@gibsondunn.com)

© 2010 Gibson, Dunn & Crutcher LLP