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The FTC and DOJ's New Guidelines Promise Sharper Scrutiny of Mergers
Following months of anticipation, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) unveiled their new Merger Guidelines (the Guidelines) on Dec. 18, 2023. More than 30,000 stakeholders offered input on proposed changes to the Guidelines, which were previously updated in 2010. While the agencies made some modifications in response to public comment, the core elements of the final Guidelines are consistent with the draft version released in July 2023.
Promising sharper scrutiny of mergers and acquisitions, the new Guidelines formalize the Biden administration's interventionist approach to enforcement and represent the culmination of its efforts to revamp antitrust policy. Indeed, the theme of modernization pervaded the agencies' remarks upon release — FTC Chair Lina Khan declared that the Guidelines "reflect the new realities of how firms do business in the modern economy," while Attorney General Merrick Garland asserted that they protect Americans from "the ways in which unlawful, anticompetitive practices manifest themselves in our modern economy" (Press Release, Federal Trade Commission, "Federal Trade Commission and Justice Department Release 2023 Merger Guidelines" (Dec. 18, 2023)). From loosened structural presumptions to unconventional theories of harm such as "ecosystem competition" to consideration of a merger's effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
The Revamped Guidelines
The Guidelines are structured around 11 principles that underlie the "frameworks" by which the agencies will assess whether to challenge a transaction. Although many of the Guidelines incorporate well-established tenets of antitrust law — the Guidelines recognize, for example, that both horizontal and vertical mergers may be anticompetitive — some of the new frameworks starkly depart from the past four decades of federal antitrust enforcement. Ultimately, the Guidelines reflect the increasingly aggressive attitude to antitrust enforcement that currently prevails both in the United States and abroad.
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