The Department of Justice and the Federal Trade Commission on Tuesday released proposed revisions to their horizontal merger guidelines, drawing a mixed reaction from the antitrust bar.

The guidelines were last modified in 1997, and the agencies said the new version, which practitioners describe as a top to bottom rewrite, is intended to “more accurately reflect the way the FTC and DOJ currently conduct merger reviews.”

Though the guidelines have no force of law, they are hugely influential. Federal Trade Commission Chairman Jon Leibowitz described the old guidelines as “one of the most cited documents in modern antitrust.”

To some, like Davis Polk & Wardwell counsel Michael Sohn, the new guidelines are “overall a very thoughtful and helpful effort.”

Sohn said the 34-page draft will better enable lawyers and companies to “predict if a merger can be done … the new guidelines conform to what the agencies are actually doing, and provide a much greater level of explanation of points that in some instances were in the old guidelines, but weren’t as fully developed.”

But Dechert partner Paul Denis, who was the principle draftsman of the 1992 guidelines (revised in 1997), said he is troubled by the “enormous amount of flexibility the government has given itself … you don’t know what they’ll do.”

Denis agreed his old guidelines were ripe for revision, but argued the new version is “not as helpful to the business community and the bar. With the old guidelines, you could read them and figure out where the government was likely to come out — you had a good idea where the line is. Now, the line has been re-drawn, but you don’t know where.”

via Law.com – Antitrust Bar Reacts to New Merger Guidelines.