CLEAR AGENCY GUIDELINES: LESSONS FROM 1982

The antitrust community is so accustomed to the terminology and approach initiated in the 1982 Merger Guidelines, as subsequently modified by the 1984 and 1992 Merger Guidelines, that one can scarcely imagine the path along which modern-day merger practice would have evolved without them. Consider "Herfindahl" or "hypothetical monopolist" or ease of entry. Consider structural presumptions that yield to a more robust examination in appropriate circumstances. All of these concepts had prior history, sometimes extensive, at the time of their adoption in the 1982 Guidelines, as did virtually all of the Guidelines' other components. Yet the particular recipe by which they were combined and specified has had a significant and lasting effect. As I observed following the issuance of the 1992 revisions, the Guidelines' "general framework has been widely cited by the courts, although with varying weight, and has gained a global acceptance as a description of rational merger policy."1 Their acceptance has only grown in the intervening years.