In this essay, Professor Pierce compares the transparent and successful operation of the Hart-Scott-Rodino decision-making process when FTC and DOJ act in accordance with the published merger guidelines, with the opaque and confused operation of that decision-making process when FTC and DOJ act in ways that are inconsistent with the guidelines. He predicts that any new guidelines that accurately reflect the policies that DOJ and FTC are actually attempting to further will be immediately enjoined. As long as FTC and DOJ continue to implement the HSR decision-making process in ways that are inconsistent with the guidelines, Professor Pierce urges firms to use the guidelines as the basis for proposing transactions and then to close any transaction that is consistent with the guidelines as soon as the agencies have completed the decision-making process even if FTC or DOJ conclude that the transaction violates the Clayton Act.
GW Paper Series
Pierce, Richard J. Jr, "Modern Merger Law: Dante’s Inferno Revisited" (2023). GW Law Faculty Publications & Other Works. 1660.