How to Do An Antitrust Overlap Analysis

Summary

This practice note analyzes how antitrust counsel can assess a firm's potential acquisition of all or part of a rival firm for antitrust risk. Specifically, it details how counsel can review the commercial activities of each firm and examine how those businesses "overlap," i.e., compete against each other. For this particular analysis, counsel will look at structural overlaps, meaning relative market shares in hypothetical product and geographic markets. An overlap analysis will also factor in other competitors and their relative shares based upon available data. An overlap analysis is based on a reasonable assessment of how markets would be defined and treated under the agency's Merger Guidelines, past settlements or cases, insight from the client, and the experience of antitrust counsel. This approach is limited to horizontal mergers, meaning between firms that operate at the same level of commerce.