Antitrust and Trade Regulation/International Law: U.K. Competition Commission and OFT Issue Joint Merger Guidelines

On September 16, the United Kingdom Competition Commission (CC) and the Office of Fair Trading (OFT) jointly issued Merger Assessment Guidelines. This document, which supersedes various prior OFT and CC guidelines, "explains the approach of the OFT when considering whether or not to refer a merger to the CC for further investigation and the approach of the CC when exploring more extensively the statutory questions posed in merger references. It highlights the differences of emphasis, as well as the commonalities, between the approaches of the OFT and the CC (‘the Authorities’)."

The new Guidelines consist of seven parts: (1) explanatory notes and an outline of the UK merger regime; (2) overarching questions that the OFT and the CC must consider in conducting reviews of mergers; (3) an explanation of what is meant by a "relevant merger situation"; (4) an explanation of the Authorities’ approach to the concept of a "substantial
lessening of competition’ (SLC) and outlines the notions of "theories of harm" and the "counterfactual"; (5) a description of the analytical approach and methodologies applied by the Authorities in considering the SLC test; (6) guidance on public interest cases; and (7) additional guidance relevant to the UK merger control regime.