A second request extends the waiting period for a specified period, usually twenty days (ten days in the case of a cash tender offer), after all parties have complied with the request (or, in the case of a tender offer, after the acquiring person complies). This additional time provides the reviewing agency with the opportunity to analyze the information and to take appropriate action before the transaction is consummated. If the reviewing agency believes that a proposed transaction may violate the antitrust laws, it may seek an injunction in federal district court to prohibit consummation of the transaction.
Final rules implementing the premerger notification program were promulgated by the Commission, with the concurrence of the Assistant Attorney General, on July 31, 1978.(7) At that time, a comprehensive Statement of Basis and Purpose was also published containing a section-by-section analysis of the rules and an item-by-item analysis of the Premerger Notification and Report Form. The program became effective on September 5, 1978. In 1983, the Commission, with the concurrence of the Assistant Attorney General, made several changes in the premerger notification rules. Those amendments became effective on August 29, 1983.(8) Additional amendments were published in the Federal Register on March 6, 1987,(9) May 29, 1987,(10) and March 28, 1996.(11)
STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM
The appendices to this report provide a statistical summary of the operation of the premerger notification program. Appendix A shows, for a ten-year period, the number of transactions reported,(12) the number of filings received, the number of merger investigations in which second requests were issued, and the number of transactions in which requests for early termination of the waiting period were received, granted, and not granted. Appendix A also shows for fiscal years 1989 through 1998 the number of transactions in which second requests could have been issued (see Footnote 2, Appendix A), as well as the percentage of transactions in which second requests were issued. Appendix B provides a month-by-month comparison of the number of transactions reported (Table 1) and the number of filings received (Table 2) for fiscal years 1989 through 1998.
The statistics set out in these appendices show that the number of transactions reported in 1998 increased approximately 27.7 percent from the number of transactions reported in 1997 (4728 transactions were reported in 1998, while 3702 were reported in 1997). (See Figure 1 supra.) The statistics in Appendix A also show that the number of merger investigations in which second requests were issued in 1998 increased approximately 2.0 percent from the number of merger investigations in which second requests were issued in 1997 (second requests were issued in 125 merger investigations in 1998, while second requests were issued in 122 merger investigations in 1997). However, these numbers indicate a decrease in the number of second requests issued as a percentage of reported transactions from 1997 to 1998 (from 3.5 percent in 1997 to 2.7 percent in 1998). (See Figure 2 below.)
Figure 2
The statistics in Appendix A also show that in recent years, early termination was requested for most transactions. In 1998, early termination was requested in 91.4 percent (4323) of the transactions reported while in 1997 it was requested in 90.8 percent (3363) of the transactions reported. The percentage of requests granted out of the total requested increased slightly (from 74.7 percent in 1997 to 74.8 percent in 1998).
