AAI’s Moss Joins Panel on New Merger Guidelines at George Washington University Competition Law Center-Crowell & Moring 4th Annual Antitrust and Tech Conference

Diana Moss appeared on the GW/Crowell & Morning annual conference program to discuss the impending release of the new merger guidelines on the panel Can Looking Back Move Us Forward: Anticipating New Merger Guidelines. From the panel description:

In January 2021, the agencies announced an ambitious goal of thoroughly overhauling their enforcement policies and merger guidelines. Promising a significant revision of the 2010 Horizontal Merger Guidelines, and following on the heels of the FTC’s disavowal of the 2020 Vertical Merger Guidelines, the January 2021 Request for Information (RFI) seemingly suggested that new guidelines will revive past Supreme Court precedent combined with a greater emphasis on what has been repeatedly referred to by the agency heads as “market realities,” with a firm eye on digital markets.  The impact of the proposed guidelines, however, will not be limited to the digital markets that inspired them. The concepts they endorse will have broader application and potentially wide-ranging implications. 

Our panel will examine the agencies’ view of how merger enforcement’s goals should be expanded, as well as their likely approach to such foundation principles as competitive effects, market definition, market power, efficiencies, potential and nascent competition, and the very language we have used in the past to describe various types of combinations, such as “horizontal,” vertical,” and “conglomerate.”  We will further discuss whether it may be more difficult than in the past to significantly alter established guidelines’ principles, in large part owing to their success in the courts. To the degree they have now been “written into law,” courts may be more resistant to changes than in the past.

Speakers:

David B. Lawrence, Policy Director, DOJ Antitrust Division 

Dr. Diana L. Moss, President, American Antitrust Institute 

Sean P. Sullivan, Professor, Iowa College of Law 

Schonette Jones Walker, Chief, Antitrust Division at Maryland Office of the Attorney General 

Moderator: Shawn Johnson, Partner, Crowell & Moring