The Reagan Administration expressed its enforcement policy for horizontal mergers in Merger Guidelines issued in 1982 and 1984 ("DOJ Guidelines"), implemented its policy through its specific enforcement actions pursuant to section 7 of the Clayton Act, and proposed to codify its policy in amendments to section 7. The National Association of Attorneys General (NAAG) now has gone beyond mere criticism. It has announced the intention of state attorneys general to challenge mergers they believe to be anticompetitive and has issued its own enforcement guidelines for horizontal mergers ("NAAG Guidelines"). The purpose of this Article is to show that the NAAG Guidelines, not the DOJ Guidelines, produce systematic errors in market delineation. The NAAG Guidelines understate the scope of markets. Although the NAAG Guidelines proclaim their reliance on the actual workings of the marketplace and on "market realities", their quarrel with the DOJ Guidelines on market delineation reveals a pronounced blind spot and a baseless fear that the Justice Department is intent on sabotaging merger enforcement. Section I outlines the approach to market delineation in the DOJ Guidelines, reviews how the Justice Department has applied them in cases with court decisions on the merits, and analyzes the NAAG Guidelines' criticisms of the DOJ Guidelines' approach to market delineation. Section II outlines the approach to market delineation of the NAAG Guidelines, notes many vagaries in this approach, and explains how it yields markets that are overly narrow. Finally, Section III summarizes the arguments and provides concluding remarks.
Gregory J. Werden,
Market Delineation under the NAAG Horizontal Merger Guidelines: Realities or Illusions,
35 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol35/iss3/5