New FTC Policy Restricts Future Acquisitions For Some Merging Parties

On October 25, 2021, the Federal Trade Commission (FTC or Commission) adopted a new policy requiring merging parties that enter into settlements to resolve competition concerns to give the FTC veto power over future deals in related areas for at least 10 years. This new policy is the latest of several recent moves by the FTC to intensify merger review.¹ It represents a shift from past practice and introduces important strategic considerations for transactions raising antitrust issues that previously could be addressed through remedies. Although the Commission leadership is currently split 2-2 along party lines, the Prior Approval Policy Statement was adopted with a 3-2 majority on the strength of former Democratic Commissioner Rohit Chopra's vote, which remained effective under FTC procedural rules even following his departure.² The FTC wasted no time in utilizing its broad new authority, imposing a prior approval clause in a merger settlement announced on the same