DOJ And FTC Propose New Merger Guidelines—But Will Courts Follow?

After a series of withdrawals of key antitrust policy statements and guidance documents and announcing an intention to make changes to the merger guidelines, the Federal Trade Commission and Department of Justice (the Agencies) recently jointly released for public comment updated draft merger guidelines (the Proposed Guidelines). The Proposed Guidelines differ significantly from prior merger guidelines. Most notably, the Proposed Guidelines largely focus on theories of harm, and relegate to appendices a summary of the process for evaluating mergers. Although the guidelines have no independent legal force, the benefit of the Proposed Guidelines as drafted is that the Agencies have seemingly been very intentional about using plain language that can be understood by the public and members of the business community who are not lawyers.¹ But in doing so, they sacrifice the technical guidance upon which practitioners have long relied to help clients navigate the regulatory