DOJ And FTC Joint Announcement Signals Sweeping Changes To Merger Guidelines

On January 18, 2022, the U.S. Department of Justice ("DOJ") and Federal Trade Commission ("FTC") jointly announced their intention to begin a sweeping rewrite of their merger guidelines and issued a request for public comment on specific questions that will drive this revision process. The review is expected to lead to the replacement of the existing joint Horizontal Merger Guidelines, which were last updated in 2010, and the Vertical Merger Guidelines, which were updated in 2020 but then withdrawn by the FTC in 2021 under new leadership. The guidelines are intended to establish a framework for evaluating how the agencies review the competitive effects of mergers and—although they do not have the force of law—have long been considered persuasive by courts. In their announcement, the agencies signaled five areas of interest with potentially wide-ranging ramifications on the merger review process, particularly for large tech deals, digital markets, and private equity.