FTC Releases New Data On Horizontal Merger Investigations

The U.S. Federal Trade Commission ("FTC") released a staff report earlier this month that provides new data on the agency's horizontal merger investigations. The report updates a 2008 version and now covers 264 investigations in which a second request was issued from 1996 through 2011. The report provides data on purported market concentration, number of competitors, impact of hot documents, existence of customer complaints, and ease of entry.

The updated data confirms generally known enforcement trends. The higher the Herfindahl-Hirschman Index (HHI), a measure of concentration, the greater the likelihood of a second request. Higher HHIs also correspond with increased rates of follow-on litigation or an agreement containing a consent order, in other words, an enforcement action. According to the FTC, incidence of customer complaints and hot documents within the parties' files correlates with a higher likelihood of investigation, while easier entry correlates with