Charles A. Miller,
Big Data and the Non-Horizontal Merger Guidelines,
107 Calif. L. Rev. 309
Data is increasingly valuable as a product, input, and market tool. Exclusive data may be the most valuable asset many firms possess. Yet, regulators in the United States often overlook the importance of data-related mergers, especially between firms that do not directly compete. This is in part because the Non-Horizontal Merger Guidelines (“NHMG”) are out of date and obsolete. The NHMG were last updated in 1984 at a time when agencies relied on a simplistic presumption against non-horizontal merger enforcement.
Revision of the NHMG presents an opportunity to provide a modern framework to evaluate mergers. An update to agency guidance is important to address changes in the use of data that have the potential to alter market structures and raise barriers to entry. This Note finds that the NHMG should be updated to consider non-price harms, foreclosure, price discrimination, and entrenchment. Alternatively, agencies could publish specific guidance to aid in evaluating data-related mergers. Updated guidance would provide a helpful framework for courts analyzing data-related mergers and increase predictability for business stakeholders considering data-related mergers.