Focusing the Inquiry: Specificity in the Merger Guidelines and Elsewhere

Abstract

In June of 1982, Department of Justice and Federal Trade Commission issued revised merger guidelines.' The drafters had to choose between very general standards, that permit all relevant factors to be considered, and more specific bright line standards that, while easier to apply, might omit important factors. This choice is not unique to merger law. The same tradeoffs are also made in many other areas of antitrust in deciding whether to adopt rule of reason or rules of per se illegality, or any of gradations in between.2 A common reaction to new Guidelines is that they err on side of considering too many factors.3 They are seen as too vague and general, reducing to some extent certainty and predictability of old merger law.4 There is usually an honest recognition that old law was occasionally too extreme in other direction, and that some reform was needed to correct a situation where, in Justice Stewart's words, only rule was that the Government always wins.'5 The