On September 3, 2020, the Antitrust Division of the DOJ issued a
revised Policy Guide to Merger Remedies, following
shortly after it announced a reorganization of its civil
enforcement to create an Office of Decree Enforcement and
Compliance.
The Policy Guide to Merger Remedies largely codifies a trend
towards strengthening of the Division's preference for
structural remedies—such as divestitures—over conduct
remedies—such as firewalls. This revision now expressly
states that “[s]tructural remedies are strongly preferred in
horizontal and vertical merger cases because they are
clean and certain, effective, and avoid ongoing government
entanglement in the market” (emphasis added), responding to a
perception within the bar that vertical mergers (involving firms at
different levels of the distribution chain that do not compete
directly) are more amenable to conduct-only remedies. The Policy
Guide also lays out conditions when the Division may accept a
conduct-only
