BRG Experts Provide Comments to FERC’s Horizontal Market Power Notice of Inquiry

Responding to the Federal Energy Regulatory Commis­sion’s (FERC) request for public input on its approach to examining horizontal market power concerns in electricity mergers, Carl Danner, Henry Kahwaty, and Cleve Tyler filed comments addressing whether a revised approach is warranted in light of the new Horizontal Merger Guidelines issued jointly by the Department of Justice (DOJ) and Federal Trade Commission (FTC) in August 2010.

It is widely recognized by antitrust practitioners that the old HHI (Herfindahl-Hirschman Index) screening thresholds were too low and did not correspond to DOJ/FTC practice. Before FERC adopts new screening thresholds, the BRG experts’ comments recommended that FERC conduct or seek out studies related to the competitive impacts of consummated electricity mergers. These studies will help FERC better identify and clarify competitive concerns and determine appropriate new screening thresholds.

The views expressed are those of the authors and not intended to represent those of Berkeley Research Group or other experts at BRG.