Recent years have seen significant vertical integration in the
healthcare space, whether megamergers such as CVS-Aetna and
Cigna-Express Scripts, or the numerous hospital and health system
acquisitions of physician groups and other non-hospital healthcare
providers. These vertical mergers—combining assets that are
used at different levels of the supply chain—have largely
escaped significant antitrust scrutiny since they do not reduce the
number of competitors in the market and often have pro-competitive
justifications that would result in lower prices and/or higher
quality products and services for consumers.
Last week, the US Department of Justice (DOJ) and the Federal
Trade Commission (FTC) published draft vertical merger guidelines (the Draft
Guidelines), signaling that vertical merger enforcement is, and
will continue to be, a priority for both agencies. The Draft
Guidelines supersede the DOJ's 1984 Non-Horizontal Merger
Guidelines and are intended to be read "in
