Archive for the ‘DOJ’ Category

Revising FERC’s Horizontal Merger Policies

Photo by Aidan Jones. Some rights reserved.

Law firm memos are abuzz with information on FERC’s recent Notice of Inquiry (NOI), which requests comments on whether – and how – to revise their approach to examining horizontal market power concerns.

The question of revision was sparked by last year’s Horizontal Merger Guidelines – a document issued jointly by the FTC and DOJ that set forth how those two agencies in particular will evaluate the impact of horizontal mergers on competition in various markets. The guidelines flesh out in what ways the agencies can “identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that are either competitively beneficial or neutral.”

FERC has a similar directive – pursuant to Section 203(a)(4) of the Federal Power Act (16 USC 824b) – to evaluate and subsequently approve or block proposed mergers by public utilities. However, FERC’s current merger policies incorporate guidelines from DOJ and FTC that were issued almost twenty years ago.

Specifically, the March 17th NOI asks whether or not FERC’s current approach should be amended to reflect FTC and DOJ’s new 2010 merger guidelines, and what impact, if any, those guidelines should have “on the Commission’s analysis of horizontal market power in its electric market-based rate program.”

Want more details? You’ve got your choice of well-written memos from White & Case, Alston + Bird, Dewey & LeBoeuf, and Bracewell & Giuliani.

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