On 19 July, the Department of Justice’s Antitrust Division (DOJ) and the Federal Trade Commission (FTC) jointly released new draft merger guidelines for public comment. The guidelines are intended to explain how the DOJ and FTC (“Agencies”) will assess whether future mergers and acquisitions may violate US antitrust law. These guidelines represent another step in the Biden Administration’s effort to increase aggressive merger enforcement.
The proposed new guidelines signal the biggest shift in years for merger review and articulate a stated preference “for internal growth over acquisition.” Indeed, the new guidelines would entangle many transactions that likely would not have raised competitive concerns under prior iterations of the guidelines. For example, the guidelines — 1) lower the market concentration threshold that would establish a presumption of anticompetitive harm; announce low market-share thresholds that would trigger concern in vertical mergers; 3) establish new approaches for assessing serial acquisitions, acquisitions by potential entrants, acquisitions of nascent competitors, and mergers involving platform markets; and 4) require assessment of a merger’s impact on labor markets. In short, they set forth a new methodology for analyzing acquisitions that would make it easier for the Agencies to challenge future deals.
Until 18 September, anyone may submit public comments on the proposed guidelines.
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