Responding to the Reaction: The Draftsman's View

Abstract

When the Antitrust Division of the United States Department of Justice undertook to update the 1968 Merger Guidelines,' two goals were set: first, to bring the Guidelines into line with subsequent developments in antitrust law and economics; and second, to reduce the uncertainty surrounding the evaluation of mergers and acquisitions by the Department. At the time the revised Guidelines were issued in June 1982, the Department felt that it had met those goals. Today, after extensive public scrutiny and debate and after using the Guidelines to review a number of proposed mergers, the Department, or at least the head of the Antitrust Division, remains convinced that the Guidelines meet these objectives. As evidenced by this Symposium, however, there are some-although apparently a minority-who remain skeptical of, if not hostile to, the Guidelines. Most, if not all, of the criticisms were foreseen at the time the Guidelines were released. One's evaluation of those criticisms depends primarily on the philosophical and economic assumptions with which one approaches the Guidelines. To those who view with approval the current trend in antitrust jurisprudence toward a focus on economic efficiency and consumer welfare, many of the criticisms of the Guidelines are unlikely to be persuasive. A number of the other criticisms reflect the debates among economists on relatively minor points, such as the extent to which the Herfindahl-Hirschman Index (HHI) is superior to concentration ratios as a measure of concentration.2 Still other