Antitrust writing awards
Free access to over 100 leading articles
Vote for the best antitrust Writing!
Previous business/academic article Next business/academic article

‘Tally-Ho!’: UPP and the 2010 horizontal merger guidelines

James A. Keyte, Kenneth B. Schwartz, Antitrust Law Journal, Vol. 77, No. 587, 2011.
NB: This article is the winner of the Academic Readers Awards of the 2012 Antitrust Writing Awards. Click here for all winning-awards articles

See James A. Keyte's resume See Kenneth B. Schwartz's resume

Vote for this articleHelp

* Average
** Interesting
*** Good
**** Excellent
***** Must receive an Award!

Readers vote is closed since March 1st, 2012. Readers’ vote has nominated 2 articles for each of the Awards. This short list has been communicated to the Board, with the articles nominated by the Steering Committees. The Board will decide on the award-winning articles on March 27, at the Awards ceremony to take place in DC. See vote results online here.

Click here to read the full article online

The 2010 Horizontal Merger Guidelines and their incorporation of upward pricing pressure (“UPP”), as discussed in Carl Shapiro’s article, The 2010 Horizontal Merger Guidelines: From Hedgehog to Fox in Forty Years, leave unanswered questions regarding whether the Guidelines are consistent with the Clayton Act – and whether a UPP screen provides a reliable basis in law or economics for identifying horizontal mergers that may raise competitive concern. The Guidelines’ departure from market definition and reasonable interchangeability in favor of consumer preferences is inconsistent with the Clayton Act and prevailing case law, including Brown Shoe and Oracle. Because of UPP’s absence of demonstrated reliability in predicting real-world competitive effects, it is premature to embrace UPP as a merger review tool for use by the FTC or the DOJ. Moreover, the Guidelines’ apparent willingness to embrace a UPP screen without providing clear consideration of how an inevitably positive UPP for merging competitors will be weighed against dynamic supply responses or efficiencies is cause for concern. Eliminating this potential counterweight to the UPP screen invites the serious potential in practice for the Agencies to adopt a “heads I win, tails you lose” application of the revised Guidelines.

© 2012 - Institute of Competition Law Download our brochure