The Durability of the New Vertical Merger Guidelines
To a torrent of both praise and criticism, the Department of Justice and Federal Trade Commission released updated Vertical Merger Guidelines on June 30, 2020. The degree of engagement and disagreement is hardly surprising, given that two of the five FTC commissioners dissented from issuing the new Guidelines and that vertical merger policy is at the forefront of current antitrust debates. It is also unsurprising in the larger historical context given that the development and release of antitrust enforcement guidelines often have been controversial.
Yet the development and longevity of past enforcement guidelines suggest that initial controversy itself is not a sign that the new Guidelines will be doomed to irrelevance or disuse. Guidelines that courted controversy when released, such as the 1982 Merger Guide lines, came to be recognized as an important evolutionary step in merger enforcement. Neither is unanimity a guarantee of longevity, as with the withdrawal in 2012 of the unanimously approved 2003 FTC Policy Statement on Monetary Equitable Remedies in Competition Cases.
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