DOJ And FTC Radically Revise Antitrust Merger Guidelines: FAQs For Business

The Federal Trade Commission ("FTC") and U.S. Department of Justice Antitrust Division ("DOJ") recently introduced proposed revisions to the existing merger guidelines. The new draft guidelines, if enacted in a form similar to the current draft, would represent a seismic shift in how the agencies approach antitrust merger investigations. They expand the types of transactions expected to result in additional scrutiny and lower the threshold for market shares that may be considered problematic. Ultimately, the new guidelines are likely to lead to additional merger challenges.

While the merger guidelines do not have the force of law, courts have traditionally looked to the guidelines as persuasive authority. The marked change characterized by the new guidelines may limit their persuasiveness for courts, but companies should be aware of the significant shift in merger enforcement the draft guidelines represent.