A long-running initiative by the Department of Justice (DOJ) and Federal Trade Commission (FTC) to modernize their joint merger guidelines reached its conclusion Monday.
The agencies issued their 2023 Merger Guidelines, following a nearly two-year process of public feedback, workshops, and review. The finalized guidelines replace previous guidance published separately on vertical mergers and horizontal mergers in 2020 and 2010, respectively.
“The 2023 Merger Guidelines reflect the new realities of how firms do business in the modern economy and ensure fidelity to statutory text and precedent,” said FTC Chair Lina Khan in a joint press release.
After the FTC and DOJ released their draft merger guidelines in July, they received more than 30,000 comments. The feedback resulted in the agencies reducing their list of guidelines, from 13 to 11, regarding the procedures and enforcement practices they most often use to investigate whether mergers violate antitrust laws.
The two guidelines scrapped, on 1) foreclosing competition and 2) furthering a trend toward concentration, are reflected less explicitly in other areas of the final guidance.
The guidelines, which are not legally binding, serve to identify the factors and frameworks the DOJ and FTC consider when investigating mergers. Enforcement decisions are unique to each case and require prosecutorial discretion and judgment.
Since releasing the draft guidelines, the DOJ in October announced a new safe harbor program for voluntary self-disclosures related to evidence of misconduct uncovered during mergers and acquisitions (M&A). Officials at the agency have said compliance should have a “prominent seat” at the table in evaluating and derisking M&A decisions.
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