Guidelines should clarify the law and not depart radically from established judicial principles. There are circumstances in which the Courts, usually at the margin of the law, have indicated an intention to follow new principles. Guideline drafting is an evolving process. The modest but constructive changes in the excellent 1982 Horizontal Merger Guidelines are examples. It is precisely because it is a process that we have put these Guidelines out in draft form and will welcome comments and suggestions.
Guidelines ideally have an impact on a number of constituencies.
They help the staffs of the enforcement agencies to follow a more uniform approach designed to produce similar outcomes in similar cases. They advise practitioners about the standards that agency staff will employ in investigation and enforcement actions, and that in turn enables staff and private counsel to have a more constructive exchange during investigations. Finally, Guidelines should educate private practitioners who have little or no expertise in antitrust law, alerting them to questions to resolve when advising clients about potentially vulnerable agreements. As a last point of introduction, let me say a word about tone. The goal in this draft was to achieve balance.