FTC And DOJ Release New Merger Guidelines

On December 18, 2023, the Federal Trade Commission and the Department of Justice jointly released their final Merger Guidelines. The Guidelines "identify the procedures and enforcement practices [the agencies] most often use to investigate whether mergers violate the antitrust laws."¹ The agencies issued the Guidelines after a nearly two-year process that included issuance of draft Guidelines on July 19, 2023, a subsequent public comment period, four public "listening sessions" and three workshops that the agencies hosted. See our alert on the draft Guidelines here.

In the end, the final Guidelines are broadly consistent with the July draft, with some (largely tonal) changes. Substantively, the most notable changes from the draft Guidelines include (i) removal of draft guideline 6, which would have established a structural presumption that a vertical merger is illegal based on market shares (market shares are now an element of a more holistic analysis of vertical