DOJ And FTC Release Draft Merger Guidelines

After much anticipation, on July 18, 2023, the Federal Trade Commission and the Antitrust Division of the Department of Justice released their revised Draft Merger Guidelines. The revised guidelines were long anticipated with President Biden requesting the agencies update the guidelines in his Executive Order Promoting Competition released in July 2021 and the agencies issuing a request for information and conducting listening sessions with the promise of updated guidelines. When issued in final form, the Draft Merger Guidelines would be the singular source of the agencies' approach to analyzing both horizontal and vertical mergers and acquisitions.

But, even once finalized, the Draft Merger Guidelines will not be legally binding; rather, they serve as guidance for courts and the public. The agencies aim to set forth guidance that will influence courts though and have included cites to case law favorable to their position to support their proposed analysis.