Treating Like Cases Alike: The Need for Consistency in the Forthcoming Merger Guidelines

The U.S. Department of Justice and Federal Trade Commission are expected to release new merger guidelines soon. Among other requirements, the Agencies should strive to develop new guidelines that are consistent both internally and with binding precedent. Indeed, because the “essence of the rule of law is that like cases are treated alike,” it is doubtful that inconsistent guidelines could win judicial adoption. Based on recent statements and enforcement actions, there is a risk that the New