Federal Trade Commission And Justice Department Issue Highly Anticipated Merger Guidelines

On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly issued new Merger Guidelines. The new guidelines amend, update and replace the numerous versions of merger guidelines previously issued by both agencies, including the 2010 Horizontal Merger Guidelines and the Vertical Merger Guidelines that were issued in 2020 and later withdrawn by the FTC in 2021. Below are our key takeaways, followed by some discussion of how the agencies apply the guidelines and then a deeper-dive into some industry-specific considerations.

Key Takeaways

• Merger guidelines provide the "procedures and enforcement practices" of the agencies, but they are not law. Past merger guidelines have been cited by courts, but it will be interesting to see how the courts treat the new guidelines.