On December 18, 2023, the Department of Justice (DOJ) and
Federal Trade Commission (FTC) published new Merger Guidelines, 13
years after their last revision. While the 2023 Merger Guidelines
have proven to be controversial among critics, so far courts have
largely adopted them. Here, we look at how courts have considered
the Guidelines over the past year.
While the agencies have previously had separate guidelines for
vertical and horizontal mergers, the 2023 Merger Guidelines offered
a unified vision of merger review. This vision aligns with Supreme
Court precedent from the 1960s by promising stricter merger review.
However, over the last 60 years, antitrust precedent had developed
in different directions in the lower courts, with the consumer
welfare standard and economic efficiency taking a primary role in
evaluating harms from mergers. In contrast to those developments,
the 2023 Merger Guidelines often ignored more recent precedent and
relied on earlier case law
