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Revising the U.S. DOJ-FTC Horizontal Merger Guidelines – Accounting for Algorithmic Coordination

By  |  October 30, 2022

Michal Gal & Daniel L. Rubinfeld, University of Haifa & University of California at Berkeley

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    This Comment is written in response to DOJ-FTC Request for Information on Merger Enforcement. We explain that the use of pricing algorithms based on artificial intelligence methodologies (hereinafter: “pricing algorithms”), by one or both parties, should be taken into account in the merger analysis. This is due to the fact that the use of such algorithms might substantially increase the possibility of explicit or tacit collusive behavior. We then suggest several ways in which merger review and the Horizontal Merger Guidelines can incorporate such effects.

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