On January 10, 2020, the U.S. Department of Justice and Federal
Trade Commission (the "Agencies") released their
long-awaited draft Vertical Merger Guidelines for public
comment.
The draft Guidelines largely reflect the Agencies' current
approach and do not appear to represent any meaningful change in
enforcement posture or policy. They would replace the existing 1984
Non-Horizontal Merger Guidelines, which were both out-of-date and
somewhat misleading. They purport to establish a quasi-safe harbor
of 20% share in the upstream and downstream markets, which, because
it would be considerably lower than most vertical merger challenges
in the past, as well as the comparable 30% share in the European
Commission's guidance, is not expected to be a meaningful
benchmark in practice.
