The U.S. Federal Trade Commission and Department of Justice Antitrust Division (the “agencies”) recently released the final version of their joint 2023 Merger Guidelines following a public comment period on a draft released in July 2023 (discussed in our prior alert). During the comment period, the agencies received more than 30,000 comments from the public and held three workshops led by antitrust attorneys, economists, academics, and policymakers.
The Guidelines contain 11 principles that describe how the agencies may analyze a merger’s potential to harm competition.1 Although certain aspects of the final Guidelines are notably toned down compared to the draft, overall they continue to reflect the agencies’ current, aggressive approach to merger review and expansion on traditional theories of harm, even doubling down on untraditional theories that have failed in court. In that sense, the Guidelines reinforce our belief that merger investigations will continue in their frequency and length, and that challenges—including ones brought under non-horizontal theories—will continue through the remainder of the Biden Administration.
This alert summarizes key substantive changes to the draft Guidelines as well as the likely impact of the final Guidelines on merger review going forward.