Revising the US vertical merger guidelines: policy issues and an interim guide for practitioners

While the Horizontal Merger Guidelines issued by US antitrust enforcement agencies have been periodically revised since their first publication in 1968, the Vertical Merger Guidelines were last the subject of modification in 1984. Moreover, there appears to be little appetite within the agencies for revision; so interested parties are for the moment left with guidance which does not reflect contemporary economic theory, agency practice or the 2010 Horizontal Merger Guidelines. The aim of this article is to partially fill the gap left by this divergence, by providing both a modern analytical framework for the assessment of vertical mergers and illustrative examples of recent antitrust agency enforcement actions upon which practitioners and agency staff alike may rely. The article also identifies a number of legal and policy issues which would need to be considered were the Vertical Merger Guidelines to be revised. We hope that this article will facilitate a more rapid revision.