Blast From The Past: FTC Revives Conglomerate Concerns As Basis For Merger Challenges

On May 16, 2023, the Federal Trade Commission filed a complaint in the Northern District of Illinois seeking to enjoin closing of Amgen Inc.'s proposed $28 billion acquisition of Horizon Therapeutics. This is the first time in over 40 years that a US antitrust agency has challenged a transaction based on a "conglomerate" theory of competitive harm—that is, concerns based on neither direct competition nor a supplier-purchaser relationship between the merging parties. Although both parties develop and supply pharmaceuticals, the FTC alleged neither that they currently supply or are developing competing products nor that one party supplies inputs to the other. Instead, the FTC alleged that by combining two drugs—one for treating thyroid eye disease (TED) and another for treating chronic refractory grout (CRG)—for which Horizon enjoys a monopoly with Amgen's broad portfolio of leading drugs, the proposed merger could enable the merged firm to offer customers, i.e.,