The Contribution of the Merger Guidelines to theAnalysis of Non-Horizontal Mergers合并准则对公司的贡献 非横向并购分析.pdf

The Contribution of the Merger Guidelines to the Analysis of Non-Horizontal Mergers Frederick R. Warren-Boulton1 While ìNuttin, Honey,î might be a natural response, it would be both ungracious and unimaginative. It is true that the analysis of non-horizontal mergers in the Guidelines has not been a hot topic. The non-horizontal section (Section 4: Horizontal Effect from Non-Horizontal Mergers) in the 1982 Guidelines was essentially reprinted in the 1984 Guidelines, and then disappeared in the (aptly named) ìHorizontalî Merger Guidelines of 1992. Thus the Non- Horizontal section of the 1984 Merger Guidelines remains the official position of the DOJ and the FTC on potential entry and vertical mergers.2 As the title of Section 4 made clear, the ë82 Guidelines regarded non-horizontal mergers as of interest for antitrust policy only insofar as they had horizontal effects. The Guidelines identified two situations under which the Department might challenge a non-horizontal merger: where the merger would eliminate a specific potential entrant, and where a vertical merger would raise barriers to entry, facilitate collusion, or allow a monopoly supplier to evade rate regulation. This represented a major shift from the relative hostility to vertical integration exhibited in the 1968 Guidelines, which regarded as problematic a vertical merger between firms accounting for only 10% and 6% of sales in their respective markets. In contrast, the ë82 Guidelines stressed that non-horizontal mergers were of concern only if they had horizontal effects, and that a precondition for such an effect was the presence of certain structural characteristics at both levels, with significant market power at one level at least. For a conglomerate or ìpotential competitionî merger, this involved a relatively straightforward adaptation of the horizontal merger criteria