ICN Investigative Techniques Handbook for Merger Review

This Handbook is one step in that path. It is the result of a three-year effort by the members of the Investigative Techniques Subgroup of the Merger Working Group (see Annex 1 for a list of Subgroup members). The chapters appearing in this Handbook are updated versions of articles published on the ICN website in 2004. The materials were composed, compiled and reviewed by all of the subgroup members, and the Handbook represents the collective experience of the group with investigative tools and techniques used in merger review. The legal and economic importance of effective merger review via the use of suitable investigation techniques cannot be overemphasized. From a legal perspective, our basic duty in the merger process is to investigate proposed mergers and acquisitions to determine – empirically not theoretically – whether they may substantially harm competition. The ability to determine whether a merger likely will create or enhance market power is dependent upon the use of appropriate investigative tools. The importance of having appropriate tools to obtain information relevant to the review of proposed transactions is recognized by the ICN in its Recommended Practice on Competition Agency Powers, proposed for adoption in Bonn, which advocates that “Competition Agencies should be provided with appropriate investigative tools and mechanisms by which the agency can compel merging and third parties to produce relevant information, for example, by providing the competition agency with the ability to seek effective sanctions for non-compliance with formal requests for documents, testimony and other information.” From an economic standpoint, mergers have an immediate effect on the structure of the market, and prohibiting potentially damaging mergers is an effective way to prevent the creation of market power. On the other hand, the cost to the merging firms, consumers and other market participants of a wrong decision can be substantial. The use of appropriate investigation techniques to evaluate the competitive concerns a merger can raise – using the right tools for the job – is crucial to reach the “correct” decision as quickly and efficiently as possible. In addition, common knowledge of the techniques used by the agencies can increase certainty in the market, as firms know what to expect when submitting a merger request. The objectives of this Handbook are to inform ICN members of the various tools and techniques used in merger review as well as to help members organize and use their