What provisions does the Commission generally expect to see in a consent order?
Every order in a merger case has the same goal: to preserve fully the existing competition in the relevant market or markets. Although there is no “magic formula” to achieve that goal and developing appropriate merger remedies is a very fact-specific inquiry, many provisions have been developed over the years that appear in almost every merger order. For example, most orders relating to a horizontal merger will require a divestiture; the divestiture will have to be “absolute”; the order will state the purpose of the divestiture; the Commission will be authorized to appoint a divestiture trustee if the assets aren’t divested on time; the divestiture trustee may have authority to divest a larger package of assets; the assets to be divested will have to be maintained pending divestiture; the parties must represent that they can accomplish the remedy; certain reporting obligations will be imposed; and the staff’s access to documents and employees will have to be assured. This general listi
