January 25, 2023

Antitrust: New Merger Guidelines on the Way?

Just about a year ago, the FTC & DOJ announced that they were considering ways to modernize the federal merger guidelines “to better detect and prevent illegal, anticompetitive deals in today’s modern markets.  This McDermott memo says that we should expect to see the new guidelines issued soon:

On January 18, 2022, The FTC and the DOJ launched a joint public inquiry soliciting input on ways to modernize the federal merger guidelines. The federal enforcement agencies voiced concerns over increased market concentration across many industries. The issues of interest involve reevaluating the agencies’ positions on the types of transactions that should be viewed as presumptively anticompetitive, market definition, so-called “nascent” competition, buyer-side monopsony power (with an acute focus on labor markets) and digital (i.e., “tech”) markets. The new merger guidelines, expected to be released in Q1 of 2023, will likely be a major overhaul of the prior guidelines and empower the agencies to bring enforcement actions in line with theories applied in recent investigations and merger challenges.

So, the FTC & DOJ plan to bake new enforcement theories that have largely received a cold shoulder from the federal courts into their revamped merger guidelines? Well, in the immortal words of Pepper Brooks, “it’s a bold strategy Cotton, let’s see if it pays off for them.”

John Jenkins