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Feds to Review Merger Guidelines

John Commins, for HealthLeaders Media, September 22, 2009

The Federal Trade Commission and the Department of Justice are considering an overhaul of the guidelines that both agencies have used for the past 17 years to evaluate the competitive effects of mergers and acquisitions.

The two federal entities announced jointly today that they will conduct public workshops and solicit public comments about the Horizontal Merger Guidelines—which were last significantly revised in 1992—to determine if they accurately reflect current merger practices and to account for legal and economic developments.

"The bulk of the merger guidelines are over 17 years old," FTC Chairman Jon Leibowitz said in a media release today. "The 1992 Guidelines explicitly stated that they would be revised from time to time. We think the time has come to do that."

The guidelines outline enforcement policy at FTC and DOJ, and describe the framework and specific standards normally used by the agencies in analyzing mergers. The guidelines are intended to reduce the uncertainty associated with enforcement of the antitrust laws in the merger area.

Merger guidelines were first adopted in 1968 by DOJ. They were substantially revised in 1982 and again in 1992, when they became the Horizontal Merger Guidelines, jointly issued by the FTC and DOJ. The section on efficiencies was revised in 1997. The agencies also issued a detailed Commentary on the Horizontal Merger Guidelines in 2006.

Any guideline changes could impact a number of healthcare sector businesses. However, American Hospital Association spokesman Rick Wade says hospital and health systems mergers fall under a different set of guidelines because of the unique issues that hospital mergers raise. "We will monitor this because some issues that could arise that would eventually have an impact on hospitals," Wade says.

The agencies will issue a set of questions about the current guidelines and possible revisions. Following a public comment period and the review of original research addressing those questions or other issues related to the guidelines, the agencies will host five workshops that will be open to the public and press. The first workshop will be held in Washington on Dec. 3, followed by workshops in Chicago, New York City, and San Francisco in December and January. A final workshop also will be held in Washington.

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