On December 18, 2023, the Federal Trade Commission and the Department of Justice jointly released their final Merger Guidelines. The Guidelines “identify the procedures and enforcement practices [the agencies] most often use to investigate whether mergers violate the antitrust laws.” The agencies issued the Guidelines after a nearly two-year process that included issuance of draft Guidelines on July 19, 2023, a subsequent public comment period, four public “listening sessions” and three workshops that the agencies hosted. See our alert on the draft Guidelines here.
In the end, the final Guidelines are broadly consistent with the July draft, with some (largely tonal) changes. Substantively, the most notable changes from the draft Guidelines include (i) removal of draft guideline 6, which would have established a structural presumption that a vertical merger is illegal based on market shares (market shares are now an element of a more holistic analysis of vertical mergers); and (ii) inclusion of a detailed section on analytical, economic and evidentiary tools in merger analysis in the body of the Guidelines (this was split across multiple annexes in the draft Guidelines).
The 2023 Guidelines reflect a significant change from the 2010 Horizontal Guidelines and the 2020 Vertical Guidelines. We discuss below key components of the Guidelines and some differences between the draft and final Guidelines.
