DOJ And FTC Release Draft Of New Merger Guidelines

The U.S. Justice Department (DOJ) and Federal Trade Commission (FTC) (collectively, the "Agencies") released for public comment draft Merger Guidelines that outline how the agencies evaluate proposed deals.¹ The Agencies have periodically updated their Merger Guidelines, with the last such update in 2010.

The Agencies describe the draft Guidelines as simply another update² to address "the realities of how firms do business in the modern economy."³ But many stakeholders view the draft as an attempt to overhaul merger review fundamentally in keeping with the Biden Administration's aggressive Neo-Brandeisian approach to antitrust enforcement. The Merger Guidelines reflect the recent ongoing higher scrutiny of proposed mergers, including some theories not applied in the past fifty years and others that have failed recently in federal court.