Axinn Antitrust Insight: With Final 2023 Merger Guidelines, DOJ And FTC Formalize Aggressive Merger Enforcement Policy

• Published date: 10 January 2024
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Axinn Veltrop & Harkrider
• Author: Axinn Veltrop & Harkrider

What You Need to Know

• The final 2023 Merger Guidelines are structured around 11 guidelines outlining the Agencies' approach to merger enforcement.
• Together with the massive changes to the HSR form proposed in June 2023, the Guidelines herald longer, tougher merger investigations based on expansive theories of harm.
• The 2023 Merger Guidelines reflect the Biden Administration's general hostility toward mergers, but it remains to be seen whether the Guidelines will be embraced by the courts or maintained in their current form by future administrations.

The U.S. Department of Justice, Antitrust Division (DOJ), and the Federal Trade Commission (FTC) (and together, the "Agencies") released the final version of the 2023 Merger Guidelines ("2023 Merger Guidelines") on December 18, 2023. The 2023 Merger Guidelines aim to "provide transparency into the Agencies' decision-making process" by describing the "factors and frameworks" the Agencies use in reviewing proposed mergers. While the Agencies made some notable revisions to the final 2023 Merger Guidelines in response to public comments on the July 2023 Draft Merger Guidelines ("2023 Draft Guidelines"), the key takeaways remain largely the same.

As we noted in our July 2023 Insight, the 2023 Merger Guidelines are deeply skeptical of mergers and signal continued aggressive merger enforcement, consistent with the Agencies' rhetoric and actions in the first three years of the Biden Administration. In a number of areas, the 2023 Merger Guidelines represent a significant break with recent past practice - including the now-replaced 2010 Horizontal Merger Guidelines and 2020 Vertical Merger Guidelines - and the modern economics-driven consensus of the past several decades.

While Agency guidelines are not legally binding, prior versions of the Merger Guidelines have been cited by courts as persuasive authority reflecting widely accepted views on key antitrust principles. It is an open question, however, whether the 2023 Merger Guidelines will be embraced by the courts (especially today's Supreme Court) or maintained in their current form by future administrations. Nonetheless, the 2023 Merger Guidelines remain an important document for merging parties and practitioners to understand the Agencies' priorities and likely investigative paths under the Biden Administration.

The 2023 Merger Guidelines are structured around 11 guidelines that lay out the principles and theories the Agencies follow in merger enforcement:

• Four address potential concerns in horizontal mergers (Guidelines 1-4);
• Two address potential concerns in vertical and other non-horizontal mergers (Guidelines 5-6); and
• Five explain how the Agencies apply the Guidelines' analytical frameworks to several specific settings relating to transactions that involve firms with a so-called "dominant...