New Merger Enforcement Toolkit: FTC And DOJ Release Final 2023 Merger Guidelines

Introduction

On December 18, 2023, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") (collectively, the "Agencies") published the long-awaited final 2023 Merger Guidelines. The 2023 Merger Guidelines are informed by almost two years of considerable engagement between antitrust regulators, practitioners, economists, and the general public. The final 2023 Guidelines were updated by the Agency in response to public comment after the release of an initial draft in July 2023, but the final version of the Guidelines remain largely unchanged in substance from the summer draft. The new Guidelines reflect a more aggressive approach to merger review that has been espoused by the Agencies' leaders and the Biden Administration. The Guidelines are one large piece of a broader push from the Agencies to strengthen merger enforcement in recent years, including by ending the early termination program and requiring prior approval provisions in settlements