Market definition: Going, going, gone?
Developments in the United States

Rhonda L Smith
(2010) 18 Competition and Consumer Law Journal 119

Abstract

'In August 2010 the Federal Trade Commission and the Department of Justice in the United States issued a revised Horizontal Merger Guideline. This article identifies the changes that are occurring in relation to the use of market definition in merger assessments in the United States, in order to understand the origins of these changes and to consider their implications. A brief outline of the position of the United States’ Supreme Court indicates that in certain circumstances market definition was dispensed with earlier than by the regulatory authorities. It also highlights the difference of approach of the Supreme Court and the regulatory agencies in relation to mergers. Issues of principle, practical concerns, and the availability of new analytical techniques appear to explain the view that market definition is unhelpful and/or unnecessary, or should be de-emphasized.The implications of this are then assessed and consideration is given to whether this is relevant for competition law in Australia. The article concludes with a few general remarks and draws attention to the approach in the United States is becoming more consistent with that use elsewhere, including in Europe and Australia.'

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