Merger Remedies: The Fix Is In (Again)

• Published date: 14 January 2026
• Law Firm: Weil, Gotshal & Manges LLP
• Author: Jasmine Rosner, Emma D'Arpino, Kristin Sanford and Annagiulia Zanazzo

The antitrust enforcement regimes in the United States, the United Kingdom, and the European Union are in various stages of political turnover. Fortunately for merging parties, one of the emerging priorities for antitrust enforcers in these jurisdictions has been merger remedies.

Background on Merger Remedies

Remedies allow merger parties to proceed with a transaction by "fixing" any aspects of the transaction that could allegedly harm competition. Proposing a successful remedy can be critical to minimizing delays for the deal timeline.

Structural or Behavioral? Remedies can be structural or behavioral. Structural remedies typically divest overlapping assets to a third party ("divestiture buyer") and aim to maintain competition in the market. Regulators historically favor structural remedies that are relatively easy to implement and require limited oversight from the regulator post transaction. In judging potential remedies, regulators may look for (1) divestiture of a standalone business or business line, (2) limited entanglements or ongoing reliance between the divestiture buyer and the merging parties, (3) a divestiture buyer with the incentive and ability to compete, and (4) no new competitive concerns arising because of the divestiture. By contrast, a behavioral remedy (sometimes called a "conduct remedy") is a promise to engage in or to refrain from engaging in certain conduct to mitigate anticompetitive concerns. Generally, an effective behavioral remedy will be well-defined, enforceable, and require minimal long-term agency oversight.

When to offer a remedy? When to offer a remedy is a strategic call, as proposing a remedy implicitly acknowledges that the transaction is likely to raise questions with regulators. In the U.S., there are three main paths to a merger remedy: the agency consent decree process, a fix-it-first proposal, and litigating the fix. In the consent decree process, the merging parties and the reviewing agency negotiate a formal settlement that typically identifies the assets to be divested or the behavioral remedy, and often identifies a suitable buyer where assets will be divested. Historically, the U.S. antitrust agencies have required the consent process to be complete before the merging parties' main transaction can close.

In some instances, merging parties may choose to build in a remedy or modify their transaction before the U.S. antitrust agencies begin their investigation. This approach, known as "fix-it-first", is most...