Merger Guidelines in the United States

In Antitrust Law

By William J. Kolasky (U.S. Deputy Assistant Attorney General, Antitrust Division) and Andrew R. Dick (Acting Chief, Competition Policy Section, U.S. Antitrust Division):

There is a widening consensus among jurisdictions with competition laws that “the basic objective of competition policy is to protect competition as the most appropriate means of ensuring the efficient allocation of resources — and thus efficient market outcomes — in free market economies.”(3) As this statement from the OECD reflects, it is efficiency, not competition, that is the ultimate goal of the antitrust laws. One of the Division’s senior economists put it very well recently: “efficiency is the goal, competition is the process.”(4) When the competitive process is allowed to runs its course — unfettered by exclusionary practices or anticompetitive agreements among firms — the incentive of firms to lure away rivals’ customers by offering them lower prices, superior quality, or new product features will necessarily lead these firms to seek ever more efficient ways to do business. Only by devising more efficient means to produce and distribute their goods, or finding ways to offer superior or additional features for the same cost, can firms displace sales by their competitors. Antitrust enforcement therefore assumes as its mandate the deterrence of business conduct that threatens to distort the competitive process in product and innovation markets.

The fundamental reason we favor competition over monopoly is that competition tends to drive markets to a more efficient use of scarce resources. Competition promotes allocative efficiency by leading firms to produce output up to the point where the marginal cost of each unit just equals the value of that unit to consumers. Competition promotes productive efficiency by forcing firms to cut their costs in order not to lose sales to more efficient rivals. Competition promotes dynamic efficiency by stimulating investment and innovation. And competition promotes transactional efficiency because, faced with competition, firms will also seek out the least expensive means of carrying out transactions.(5)

Over the last fifty years, the U.S. courts have increasingly recognized that efficiencies are an essential part of rule of reason analysis under section 1 of the Sherman Act. The original formulation of the rule of reason in Standard Oil spoke vaguely of condemning agreements that “had not been entered into or performed with the legitimate purpose of reasonably forwarding personal interest and developing trade” but instead for the purpose of “restraining the free flow of commerce and tending to bring about the evils, such as enhancement of prices, that were considered to be against the public interest.”(6) Over time, this formulation was replaced by a structured balancing test, under which the courts weigh the likely anticompetitive effects of a restraint in terms of creating or enhancing market power against its procompetitive efficiency-enhancing benefits.(7) Curiously, acceptance that efficiencies should also be an integral review of the competitive effects analysis of mergers has come more slowly. This was largely because, until William Baxter began to change how we thought about mergers with the 1982 Merger Guidelines, our analysis of mergers was heavily driven by structural presumptions based on market shares and market concentration. The strength of these presumptions led the Court in Brown Shoe(8) to regard protection of competition and the pursuit of efficiencies as directly conflicting objectives. Even the Chicago School during the 1960s and 1970s took a highly structural approach to merger law. While Chicagoans objected to the merger decisions of the Warren Court era (and the enforcement policy of the federal antitrust agencies during that era) as setting the market share/concentration thresholds for mergers too low, and while they warned that concentration could well reflect underlying efficiencies of large-scale enterprises that would be sacrificed by overly aggressive antitrust enforcement, they supported the Court’s structural approach but advocated higher thresholds for illegality.(9)

It may surprise many that the leading proponents for considering efficiencies in evaluating individual mergers came, not from Chicago, but from Harvard. Donald Turner, when he was Assistant Attorney General, put a young economist by the name of Oliver Williamson to work on this issue. The result was an article showing the economic irrationality of a merger policy that did not take efficiencies into account.(10) Stimulated by Williamson’s work, Turner included a very narrow efficiencies defense in the very first Merger Guidelines, released on the last day of his tenure in 1968. Little use was made of this defense, however, until the 1980s, when merger law, stimulated by the Baxter guidelines, began to shift decisively toward incorporating non-market share factors in merger analysis. The first major widening of the defense occurred in 1984 when the Department, under the leadership of J. Paul McGrath, completely rewrote the efficiency section of the Merger Guidelines in a way that transformed efficiencies from a defense, like the failing company doctrine, into an integral part of the competitive effects analysis. McGrath’s work endured largely unchanged until 1997 when the Division and the FTC revised their joint Horizontal Merger Guidelines to detail the tools they had developed to evaluate efficiency claims based on 13 years of experience applying the McGrath framework.

This paper is a history of this progression. It shows, as Oliver Williamson predicted in 1968, that “once economies are admitted as a defense, the tools for assessing these effects can be expected progressively to be refined.”(11) That is exactly what has happened, and as their tools have been refined, the agencies’ confidence in those tools has likewise grown, making them more comfortable weighing potential efficiency gains against potential market power losses. This paper also shows the influence the Guidelines have had winning judicial acceptance of the importance of efficiencies in determining whether a merger is likely substantially to lessen competition. And, finally, it shows the influence of the guidelines in causing other jurisdictions to recognize that efficiencies should play a central role in merger review.

Early Case Law

Modern merger law in the United States began with the passage of the Celler-Kefauver Act in 1950, which amended section 7 of the Clayton Act to substantially broaden its reach. The first cases under the amended section 7 reached the Supreme Court during the peak of the Warren Court era of structural antitrust jurisprudence in the early 1960s. During this period the Court showed a strong bias toward developing per se rules whenever possible, thus obviating the need for a case-by-case balancing of the anticompetitive and procompetitive effects of the kind required under the rule of reason.(12)

This bias permeated Warren Court section 7 jurisprudence and shaped its initial approach to efficiencies in merger cases. Brown Shoe,(13) the first merger case to reach the Supreme Court under the amended section 7, came very close to rejecting even the possibility of an efficiencies defense. After acknowledging that the House committee report had explicitly stated that the statute was not intended to block a merger between two small companies that would enable them to compete more effectively against larger firms (thus seeming to invite an efficiencies defense), the Court went on conclude that Congress had nevertheless struck the balance in favor of competition over efficiency:

But we cannot fail to recognize Congress’ desire to promote competition, through the protection of viable, small, locally-owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization” (emphasis added).(14)
In its next decision applying section 7, Philadelphia National Bank,(15) the Court again used language that reflected a hostility toward efficiency arguments: “a merger the effect of which ‘may be substantially to lessen competition’ is not saved because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial.”(16)

The Warren Court’s antipathy toward efficiencies rose to new levels in its 1967 decision finding unlawful Procter & Gamble’s acquisition of Clorox.(17) There, the Court in dicta again seemed to dismiss the idea of an efficiencies defense, stating that, “Possible economies cannot be used as a defense to illegality. Congress was aware that some mergers which lessen competition may also result in economies, but it struck the balance in favor of protecting competition.”(18) Far from accepting efficiencies as a defense, the Procter & Gamble decision treated efficiencies more as an offense.(19) In finding Procter & Gamble’s acquisition of Clorox unlawful, the Court relied in part on the FTC’s finding that the merger would “entrench” Clorox’s dominant position in the bleach market because P&G would be able to advertise Clorox jointly with its other products, thus reducing its advertising costs, which we would today view as an efficiency.(20)

Federal and State Merger Guidelines

Find more information on Federal and State Merger Guidelines in relation to the Antitrust Clearance Process in Cross-Border Mergers in the legal Encyclopedias.

Merger Guidelines and the International Trade Law

Merger Guidelines (Acquisitions)

This section introduces, discusses and describes the basics of merger guidelines. Then, cross references and a brief overview about Acquisitions is provided. Finally, the subject of Antitrust, Trade Law in relation with merger guidelines is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Merger Guidelines (Joint Ventures)

This section introduces, discusses and describes the basics of merger guidelines. Then, cross references and a brief overview about Joint Ventures is provided. Finally, the subject of Antitrust, Trade Law in relation with merger guidelines is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Merger Guidelines (Mergers)

This section introduces, discusses and describes the basics of merger guidelines. Then, cross references and a brief overview about Mergers is provided. Finally, the subject of Antitrust, Trade Law in relation with merger guidelines is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Resources

Notes

3. Organization for Economic Co-operation and Development. Competition Policy and Efficiency Claims in Horizontal Agreements, OECD/GD (96) 65, Paris 1996.

4. Kenneth Heyer, Address before the Merger Task Force of the European Commission’s Directorate General for Competition, (Apr. 9, 2002). See also Lawrence Summers, Competition Policy in the New Economy, 69 Antitrust L.J. 353, 358 (2001), (“…it needs to be remembered that the goal is efficiency, not competition. The ultimate goal is that there be efficiency”).

5. Because lawyers tend to think of efficiencies only in terms of production cost savings, often neglecting allocative, transactional and dynamic efficiencies, we have appended to this article an economic taxonomy of the four distinct types of efficiencies.

6. U.S. v. Standard Oil Co., 221 U.S. 1, 58 (1911). An even earlier decision in the Ninth Circuit anticipated the Court’s approach in Standard Oil. See Hoffman v. McMullen, 83 F. 372, 376-77 (1897)(noting that the common law allows “cooperation between two or more persons to accomplish an object which neither could gain … alone … although, in a certain sense and to a limited degree, such co-operation might have a tendency to lessen competition”).

7. See, e.g., Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 20 (1979). (holding that the inquiry under section one should focus on whether the practice is one that would “tend to restrict competition and decrease output” or one “designed to increase economic efficiency and render markets more rather than less competitive”). See generally ABA Section of Antitrust Law, Antitrust Law Developments (4th ed. 1997).

8. Brown Shoe Co. v. U.S., 370 U.S. 294 (1962).

9. See, e.g., Richard A. Posner, Antitrust Law: An Economic Perspective 111-13 (2nd ed. 2001); ROBERT BORK, ANTITRUST PARADOX, 126-27 (1978). An influential member of the Chicago School, Harold Demsetz, identified the heart of Chicago’s critique on the “concentration-structure-performance” paradigm that had influenced merger policy up until that period. Demsetz noted that high market concentration (and an associated high rate of return earned by firms) could reflect the superior efficiency of large enterprises equally as well as it could signal that some firms collectively enjoy market power. Demsetz argued strongly that a naive antitrust policy that blocked mergers (or sought to break up merged entities) without regard to considering the likelihood that industry concentration stemmed from underlying efficiencies risked doing far more harm than good. See Harold Demsetz, Industry Structure, Market Rivalry, and Public Policy, 16 J. Law & Econ. 1 (1973).

10. Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 Am. Econ. Rev. 18 (1969).

11. Id. at 34.

12. See, e.g., Continental T.V. v. GTE Sylvania, 433 U.S. 35 (1977); U.S. v. Topco Associates, 405 U.S. 596 (1972).

13. Brown Shoe Co. v. U.S., 370 U.S. 294 (1962).

14. Id. at 344.

15. U.S. v. Philadelphia National Bank, 374 U.S. 321 (1963).

16. Id. at 371.

17. FTC v. Procter & Gamble Co., 386 U.S. 568 (1967).

18. Id. at 580.

19. In his concurring decision, Justice Harlan disagreed with the Court’s treatment of efficiencies. He wrote:The Court says Congress chose competition over economies, but didn’t consider ‘whether certain economies are inherent in the idea of competition.” If the effect of a merger on market-structure seems anticompetitive, the agency should “weigh possible efficiencies arising from the merger … to determine whether, on balance, competition has been substantially lessened.” Id. at 597 (emphasis added).

20. Id. at 574.

United States v. Eastman Kodak Co., 63 F.3d 95, 10607 (2d Cir. 1995) (quoting the Guidelines’ hypothetical monopolist test as applied to geographic price discrimination markets but rejecting the government’s proposed market because there was “no probative evidence in the record to support the assertion that Kodak engages in geographic price discrimination”)

United States v. Visa U.S.A., Inc., 163 F. Supp. 2d 322, 33538 (S.D.N.Y. 2001) (citing the Merger Guidelines and case law for the proposition that “a market is properly defined when a hypothetical profit-maximizing firm selling all of the product in that market could charge significantly more than a competitive price, i.e., without losing too many sales to other products to make its price unprofitable,” and endorsing expert’s analysis applying this test), appeal pending No. 02-6074, 02-6076, 02- 6078 (2d Cir.)

Pepsico, Inc. v. Coca-Cola Co., 1998-2 Trade Cas. (CCH) ¶ 72,257, at 82,642 (S.D.N.Y. 1998) (holding that end-use segments may contitute relevant markets if the hypothetical monopolist test is satisfied), appeal pending No. 00-9342 (2d Cir.)

Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 902 (S.D.N.Y. 1997) (citing the Merger Guidelines and 2A Areeda et al. ¶ 533c for the proposition that: “The relevant inquiry for market definition is whether a hypothetical union of all producers of the product or products in the putative market would possess significant power over price. If so, then the product or products comprise a relevant market.”)

New York v. Kraft Gen. Foods, Inc., 926 F. Supp. 321, 35961 (S.D.N.Y. 1995) (quoting the Guidelines’ hypothetical monopolist paradigm at length and purporing to apply it)

Bon-Ton Stores, Inc. v. May Dep’t Stores Co., 881 F. Supp. 860, 872 (W.D.N.Y. 1994) (quoting the Guidelines hypothetical monopolist test and finding a relevant market based on a predicted price increase from the proposed merger)

3d Circuit

Delaware Health Care Inc. v. MCD Holding Co., 957 F. Supp. 535, 54243 (D. Del. 1997) (citing the Guidelines’ hypothetical monopolist test approvingly)

Moore Corp. Ltd. v. Wallace Computer Servs., Inc., 907 F. Supp. 1545, 1580 n.27 (D. Del. 1995) (“Courts have frequently looked to these Merger Guidelines (most recently promulgated in 1992) as an advisory aid in determining the relevant product market”)

Piazza v. Major League Baseball, 831 F. Supp. 420, 439 (E.D. Pa. 1993) (quoting Areeda & Hovenkamp 1991 Supp. ¶ 518.1b)

Ansell Inc. v. Schmid Labs., Inc., 757 F. Supp. 467, 475 & n.4 (D.N.J.) (quoting Guidelines’ hypothetical monopolist paradigm), aff’d without opinion, 941 F.2d 1200 (3d Cir. 1991)

Bascom Food Prods. Corp. v. Reese Finer Foods, Inc., 715 F. Supp. 616, 627 (D.N.J. 1989) (quoting the second sentence of the Sullivan excerpt)

Hudson’s Bay Co. Fur Sales Inc. v. Am. Legend Coop., 651 F. Supp. 819, 835 (D.N.J. 1986) (quoting the second sentence of the Sullivan excerpt)

Pontius v. Children’s Hosp., 552 F. Supp. 1352, 1365 (W.D. Pa. 1982) (quoting all but the first sentence of the Sullivan excerpt)

Robinson v. Magovern, 521 F. Supp. 842, 877 (W.D. Pa. 1981) (quoting all but the first sentence of the Sullivan excerpt)

4th Circuit

Int’l Wood Processors v. Power Dry, Inc., 792 F.2d 416, 430 (4th Cir. 1986) (quoting the last sentence of the Sullivan excerpt)

Satellite Tel. & Associated Res, Inc. v. Cont’l Cablevision of Va., Inc., 714 F.2d 351, 356 (4th Cir. 1983) (quoting the last sentence of the Sullivan excerpt)

Victus, Ltd. v. Collezione Europa U.S.A., Inc., 26 F. Supp. 2d 772, 78485 (M.D.N.C. 1998) (quoting 2A Areeda et al. ¶¶ 536, 560)

Va. Vermiculite, Ltd. v. W.R. Grace & Co., 108 F. Supp. 2d 549, 587 (W.D. Va. 2000) (accepting defendant’s relevant market contention based on hypothetical monopolist test)

5th Circuit

Dimmitt Agri Indus., Inc. v. CPC Int’l Inc., 679 F.2d 516, 526 n.7 (5th Cir. 1982) (quoting the first sentence of the Sullivan excerpt)

Ginzburg v. Mem’l Healthcare Sys., Inc., 993 F. Supp. 998, 1012 (S.D. Tex. 1997) (quoting the last sentence of the Sullivan excerpt)

6th Circuit

Virtual Maint., Inc. v. Prime Computer, Inc., 957 F.2d 1318, 1325 (6th Cir. 1992) (quoting Areeda & Hovenkamp ¶ 518.1b 1987 Supp.), vacated and remanded, 506 U.S. 910 (1992), on remand, 11 F.3d 660 (6th Cir. 1994)

7th Circuit

Elliott v. United Center, 126 F.3d 1003, 1005 (7th Cir. 1997) (quoting Israel Travel)

Israel Travel Advisory Serv. v. Israel Identity Tours, 61 F.3d 1250, 1252 (7th Cir. 1995) (holding that “a market is defined to aid in identifying any ability to raise price by curtailing output”)

Ball Mem’l Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1336 (7th Cir. 1986) (citing the Guidelines approach to market delineation approvingly)

8th Circuit

FTC v. Tenet Health Care Corp., 186 F.3d 1045, 105354 & n.11 (8th Cir. 1999) (citing the Guidelines’ hypothetical monopolist test and holding that the failure of FTC to employ the implied critical loss analysis was fatal)

H.J., Inc. v. Int’l Tel. & Tel. Corp., 867 F.2d 1531, 153738 (8th Cir. 1989) (quoting Areeda & Hovenkamp 1987 Supp. ¶ 518.1b)

United States v. Archer-Daniels-Midland Co., 866 F.2d 242 (8th Cir. 1988) (employing the Guidelines’ hypothetical monopolist paradigm to reverse summary judgment), rev’g 695 F. Supp. 1000 (S.D. Iowa 1987)

Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 805 (8th Cir. 1987) (quoting the first sentence of the Sullivan excerpt)

United States v. Mercy Health Servs., 902 F. Supp. 968, 98086 (N.D. Iowa 1995) (applying critical loss analysis implied by Guidelines’ hypothetical monopolist test in ruling against the government and citing Areeda & Hovenkamp 1993 Supp. ¶ 518.1b for the proposition that a “geographic [price discrimination] market can be shown by showing resulting market power over any group of buyers”), appeal dismissed as moot and opinion vacated, 107 F.3d 632 (1997)

Comty. Publishers, Inc. v Donrey, 892 F. Supp. 1146, 115354 & n.6, 1161 (W.D. Ark. 1995) (citing the Guidelines on market delineation approvingly; holding that they reflect “mainstream economic thinking” on market delineation and that “the approaches to market definition endorsed by the Merger Guidelines and the case law are entirely consistent”; and quoting the first sentence of the Sullivan excerpt), aff’d, 139 F.3d 1180 (8th Cir. 1998)

United States v. Country Lake Foods, Inc., 754 F. Supp. 669, 67273, 67577 (D. Minn. 1990) (applying the Guidelines’ market delineation test in ruling against the government)

9th Circuit

Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 120304 (9th Cir. 1997) (finding a relevant market on the basis that “a monopolist or a hypothetical cartel . . . would have market power,” quoting Areeda & Hovenkamp 1993 Supp. ¶ 518.1b)

Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995) (citing Areeda & Hovenkamp ¶ 518.1b 1993 Supp. for the proposition that “[a] ‘market’ is any grouping of sales whose sellers, if unified by a monopolist or a hypothetical cartel, would have market power in dealing with any group of buyers.”)

Olin Corp. v. FTC, 986 F.2d 1295, 1299300 (9th Cir. 1993) (quoting the Guidelines’ market delineation discusssion at length and affirming and FTC decision based on the hypothetical monopolist test)

California v. Sutter Health Sys., 130 F. Supp. 2d 1109, 1120, 112832 (C.D. Cal. 2001) (quoting the Guidelines’ hypothetical monopolist test and Areeda & Hovenkamp 1993 Supp. ¶ 518.1b, and applying critical loss analysis implied by the hypothetical monopolist test)

United States v. Rank Org. Plc, 1990-2 Trade Cas. (CCH) ¶ 69,257 (C.D. Cal. 1990) (rejecting the alleged market on the basis of the Guidelines’ hypothetical monopolist test)

In re Air Passenger Computer Reservations Sys. Antitrust Litig., 694 F. Supp. 1443, 1457 (C.D.Cal. 1988) (quoting Areeda & Hovenkamp 1986 Supp. ¶ 518.1b)

Bhan v. NME Hosps., Inc., 669 F. Supp. 998, 1018 (E.D. Cal. 1987) (quoting Areeda & Turner ¶ 518)

Grason Elec. Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1520 (E.D. Cal. 1983) (quoting the first sentence of the Sullivan excerpt)

10th Circuit

SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 966 (10th Cir. 1994) (quoting the second sentence of the Sullivan excerpt)

Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216, 1222 (10th Cir. 1986) (quoting the second and last sentences of the Sullivan excerpt)

Monfort of Colo., Inc. v. Cargill, Inc., 761 F.2d 570, 579 (10th Cir. 1985) (holding that the district court was right “not to rely” on the Guidelines for market delineation), aff’g 591 F. Supp. 683, 69596 (D. Colo. 1983), rev’d on other grounds, 479 U.S. 104 (1986)

Midwest Radio Co., Inc. v. Forum Publ’g Co., 1990-1 Trade Cas. (CCH) ¶ 69,082, at 63,959 (D.N.D. 1989) (quoting all but the first sentence of the Sullivan excerpt)

11th Circuit

United States v. Engelhard Corp., 126 F.3d 1302, 130408 (11th Cir. 1997) (applying the Guidelines’ hypothetical monopolist test to affirm a decision adverse to the government, but not addressing “as a general matter of law, the validity of the 510% test”), aff’g 970 F. Supp. (M.D. Ga. 1997)

U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 99596 (11th Cir. 1993) (holding that “the very purpose of defining the relevant market under section 2 is to determine whether a monopolist, cartel or oligopoly in that market would be able to reduce marketwide output simply by cutting its own output, and thereby raise marketwide prices above competitive levels”)

S. Bus. Communications, Inc. v. Matsushita Elec. Corp. of Am., 806 F. Supp. 950, 957 (N.D. Ga. 1992) (quoting the second sentence of the Sullivan excerpt but attributing it to Rothery)

E.T. Barwick Indus. v. Walter E. Heller & Co., 692 F. Supp. 1331, 1344 (N.D. Ga. 1987) (quoting the second sentence of the Sullivan)

Drs. Steuer and Latham, P.A. v. Nat’l Med. Enters., Inc., 672 F. Supp. 1489, 1510 n.16 (D.S.C. 1987) (quoting the Guidelines’ hypothetical monopolist test)

Consolidated Gas Co. of Florida v. City Gas Co. of Florida, 665 F. Supp. 1493, 1517 (S.D. Fla. 1987) (quoting extensively from the Guidelines’ discussion of market delineation and indicating that discussion is a “good common sense explanation of the process” of market delineation), aff’d, 880 F.2d 297 (11th Cir. 1989), vacated, 889 F.2d 264 (11th Cir. 1989), reinstated en banc, 912 F.2d 1262 (11th Cir. 1990), vacated as moot, 499 U.S. 915, dismissed as moot, 931 F.2d 710 (11th Cir. 1991)

D.C. Circuit

CF Indus., Inc. v. Surface Transp. Bd., 255 F.3d 816, 823 n.13 (D.C. Cir. 2001) (citing the Guidelines’ hypothetical monopolist paradigm approvingly, as analogous to the proper market power analysis in a regulatory context).

United States v. Microsoft Corp., 253 F.3d 34, 81 (D.C. Cir. 2001) (“To establish a dangerous probability of success, plaintiffs must as a threshold matter show that the browser market can be monopolized, i.e., that a hypothetical monopolist in that market could enjoy market power.”)

Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 218 (D.C. Cir. 1986) (quoting the second sentence of the Sullivan excerpt)

Superior Court Trial Lawyers Ass’n v. FTC, 856 F.2d 226, 250 & n.33 (D.C. Cir. 1988) (endorsing a price-increase test for market delineation and citing the Guidelines), rev’d, 493 U.S. 411 (1990)

United States v. Sungard Data Sys., Inc., 172 F. Supp. 2d 172, 182, 18692 (D.D.C. 2001) (citing the Guidelines’ hypothetical monopolist test approvingly and ruling against the government for failure to satisfy that test)

FTC v. Swedish Match, 131 F. Supp. 2d 151, 16061 & n.8 (D.D.C. 2001) (paraphrasing the Guidelines’ hypothetical monopolist test, discussing expert applications using critical elasticity analysis, and informally applying the hypothetical monopolist test)

FTC v. Staples, Inc., 970 F. Supp. 1066, 107677 & n.8 (D.D.C. 1997) (quoting Guidelines’ hypothetical monopolist test and basing relevant market finding on actual exercise of market power)

FTC v. Owens-Ill., Inc., 681 F. Supp. 27, 38 & n.32, 40, 41, 42 (D.D.C. 1988) (quoting the Guidelines’ hypothetical monopolist test and applying multiple times), vacated as moot, 850 F.2d 694 (D.C. Cir. 1988)

Merger Guidelines