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81 Colum. L. Rev. 1543 (1981)
Proposed Revisions of the Justice Department's Merger Guidelines

handle is hein.journals/clr81 and id is 1557 raw text is: COLUMBIA LAW REVIEW
VOL. 81                       DECEMBER 1981                                 NO. 8
Proposed Revisions of the
Justice Department's Merger Guidelines
Steven M. Edwards
Robert D. Joffe                                                 Janusz A. Ordover
William J. Kolasky                                               Phillip A. Proger
John J. McGowan                                                 Louis M. Solomon
Carlos E. Mendez-Penate                                            Utz P. Toepke*
In 1968 the Justice Department issued merger guidelines (Guidelines)'
to acquaint the business community, the legal profession, and other inter-
ested groups and individuals with the standards currently being applied by the
Department of Justice in determining whether to challenge corporate acquisi-
tions and mergers under Section 7 of the Clayton Act. 2 In conjunction with
* Steven M. Edwards: Partner, Davis, Markel, Dwyer & Edwards, New York, New York.
B.A. 1969, University of Iowa; J.D. 1972, University of Virginia.
Robert D. Joffe: Partner, Cravath, Swaine & Moore, New York, New York. B.A. 1964, J.D.
1967, Harvard University.
William J. Kolasky: Partner, Wilmer, Cutler & Pickering, Washington, D.C. A.B. 1968,
Dartmouth College; J.D. 1971, Harvard University.
John J. McGowan: Vice President, Charles River Associates, Boston, Mass. B.A. 1958,
University of Toronto; Ph.D. 1965, Yale University.
Carlos E. Mendez-Penate: Associate, Coudert Brothers, New York, New York. B.A. 1973,
J.D. 1976, Yale University.
Janusz A. Ordover: Assistant Professor of Economics, New York University. Ph.D. 1973,
Columbia University.
Philip A. Proger: Partner, Baker & Hostetler, Washington, D.C. B.A. 1969, J.D. 1973,
University of Maryland.
Louis M. Solomon: Associate, Cravath, Swaine & Moore, New York, New York. B.A. 1976,
Yeshiva University; J.D. 1979, Harvard University.
Utz P. Toepke: Adjunct Professor of International Business, New York University. Referen-
dar 1965, Dr. jur. 1967, Hamburg University; Assessor, Munich, 1969.
The authors gratefully acknowledge the assistance that Stephen M. Axinn, James C. Camp-
bell, and Patricia Van Buskirk provided to this effort.
A preliminary draft of this Article was distributed to the members of the Section 7 Commit-
tee of the ABA's Antitrust Section for their comments. A number of very helpful comments were
received, and they have been incorporated into the proposal to the extent feasible. This Article has
not, however, been approved by, nor does it necessarily represent the views of, the American Bar
Association or any of its sections or committees.
A copy of this Article has been sent to Assistant Attorney General William F. Baxter, head of
the Justice Department's Antitrust Division, who has announced his intention to revise the
Department's merger guidelines. See note 7 and accompanying text infra.
1. [1981] 1 Trade Reg. Rep. (CCH)   4510 [hereinafter cited as Guidelines].
2. Guidelines, supra note 1, at para. 1.
Although the Business Review Procedure had been (and still is) available to determine the
Department's intentions in a particular case, 28 C.F.R. §§ 50.1-.18 (1980); [1981] 2 Trade Reg.

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