"Vertical" Merger Concerns: Forgotten Hurdle In Antitrust Clearance Timelines?

On 10 January 2020, the US Department of Justice (“DoJ”) and the US Federal Trade Commission (“FTC”) announced the publication of draft vertical merger guidelines that describe how the agencies currently review “vertical” mergers between companies at different levels of the supply chain to determine whether a deal gives rise to competition concerns (“Draft US Vertical Merger Guidelines”).  While the Draft US Vertical Merger Guidelines propose a market share “safe harbour” of 20% (below which the agencies are unlikely to challenge the merger) that is lower than the “safe harbour” of 30% in the EU, the analytical principles laid down in the guidelines broadly mirror the similar provisions set out in the Irish Competition and Consumer Protection Commission’s (“CCPC”) Merger Guidelines and the European Commission’s (“Commission”) Non-Horizontal Merger Guidelines that those authorities use to assess “vertical” mergers in the Irish and EU contexts.  While the publication of