United States Antitrust Agencies Announce New Merger Guidelines: Overview And Implications For Canada

On July 19, 2023, the United States Federal Trade Commission and the United States Department of Justice (together, the "Agencies") released draft Merger Guidelines (the "Draft Guidelines") for public comment. Once finalized, the Draft Guidelines, which are designed to help the public, business community, practitioners and courts understand how the Agencies identify potentially illegal mergers, will replace the US Horizontal Merger Guidelines issued in 2010 and the US Vertical Merger Guidelines issued in 2020.

According to the Press Release issued by the Agencies, "[t]he goal of this update is to better reflect how the agencies [currently] determine a merger's effect on competition in the modern economy and evaluate proposed mergers under the law". Notably, the Draft Guidelines reflect the Agencies' more aggressive approach to merger enforcement under the Biden administration and, in doing so, describe several novel theories of harm that have been raised in recent