New draft merger guidance put forward by the Department of Justice (DOJ) and Federal Trade Commission (FTC) continues the agencies’ joint mission to modernize antitrust enforcement.
The guidance, published Wednesday, is open for public comment through Sept. 18. Within it are 13 guidelines the agencies said they might use when determining whether a merger is unlawfully anticompetitive under antitrust laws.
The guidelines reflect the most common issues that arise in merger reviews, according to a DOJ fact sheet. They detail the agencies’ focus on areas including:
- Market concentration;
- Ensuring competition;
- Anticompetitive coordination; and
- Restructured vertical supply chains.
Of note, one of the guidelines states the agencies may consider the cumulative effect when mergers are part of a series of transactions.
The DOJ and FTC in January 2022 issued a request for information regarding modernizing merger guidelines. The agencies said they received more than 5,000 comments from the public.
“As markets and commercial realities change, it is vital that we adapt our law enforcement tools to keep pace so that we can protect competition in a manner that reflects the intricacies of our modern economy,” said Assistant Attorney General Jonathan Kanter of the DOJ’s Antitrust Division in a press release. “Simply put, competition today looks different than it did 50—or even 15—years ago.”
The last merger guidance released by the agencies was in 2020 pertaining to vertical mergers, which the FTC under Chair Lina Khan voted in 2021 to withdraw its approval regarding. Horizontal merger guidance hasn’t been updated since 2010.
Other antitrust efforts undertaken by the agencies in recent years include the 2022 publication of updates to the DOJ’s leniency program.