The Paul, Weiss Antitrust Practice advises clients on a full range of global antitrust matters, including antitrust regulatory clearance, government investigations, private litigation, and counseling and compliance. The firm represents clients before antitrust and competition authorities in the United States, the European Union, the United Kingdom and other jurisdictions around the world.
Joe Simons Comments on Proposed Revisions to the Horizontal Merger Guidelines
Practices
June 10, 2010
Litigation partner Joe Simons recently filed comments to the Federal Trade Commission and Antitrust Division in response to the April 20, 2010 request for comments on the proposed revisions to the Horizontal Merger Guidelines. While Joe notes that the proposed revisions on balance represent an improvement over the current Guidelines and are more transparent in certain respects in terms of the types of evidence upon which the agencies rely most, he makes the point that the proposed revisions also seem to suggest that the agencies will use the existence of high margins to create a presumption of lack of demand responsiveness, narrow markets, and/or market power. The use of margins in this way is highly controversial, and would justify challenges to mergers on a scale not seen from several decades, including mergers of firms with low to moderate margins. This approach would be particularly problematic for high tech industries and firms with substantial fixed and/or R&D costs.