The next step in the development of ex post evaluation of merger review procedures: Defining the state of the art with staged options for implementation

Ex post review of the pre-consummation merger evaluation decisions of competition law enforcement authorities is today widely viewed as a desirable practice likely to improve future agency performance. As a result, there is now an established body of literature discussing both the desirability of ex post reviews, as well as the various techniques available for conducting them, and a number of agencies have implemented the practice. This article argues that the time is ripe to undertake an international effort to define the “state of the art” in ex post review techniques, in order to develop a “good practices” guide or handbook. Such a guide might be especially valuable to younger agencies. Sensitive to the often limited resources of such agencies, however, it also advocates efforts to identify simplified, yet still reliable means for conducting ex post reviews, which would provide these agencies with reasonably effective means for taking advantage of the practice’s benefits, while being scaled to take into account their limited resources.