Back To The Future: FTC And DOJ Issue Draft Revised Merger Guidelines

On July 18, 2023, the Federal Trade Commission and the US Department of Justice issued a draft of their much anticipated Revised Merger Guidelines. The revisions are the first update to the agencies' horizontal merger guidelines in over thirteen years and the first guidance on vertical mergers since the 2020 Vertical Merger Guidelines were withdrawn in 2021. The Revised Guidelines reflect the more aggressive and novel theories of harm that the agencies are currently using to analyze mergers and acquisitions, and, in several ways, reflect a substantial departure from and expansion of the 2010 Horizontal Merger Guidelines.

In summary:

• The Revised Guidelines attempt to return merger enforcement to some of the standards articulated by the agencies in their first Merger Guidelines from1968. The 2010 Guidelines used market shares and concentration statistics as a starting point for the agencies' analysis. The Revised Guidelines, however, take antitrust "back to the