DOJ And FTC Submit Draft Updated Merger Guideline

On July 19, 2023, the U.S. Department of Justice and Federal Trade Commission released a draft update of the Merger Guidelines and invited public comments. If adopted, the Proposed Guidelines would represent a substantial change in the way the U.S. antitrust agencies analyze the competitive effects of mergers. The agencies propose thirteen separate guidelines. Below we identify just a few key proposed changes.

The Proposed Guidelines seek to integrate previously separate standards for horizontal and vertical mergers. Horizontal mergers are mergers between firms who both operate in the same antitrust market, while vertical mergers are those between firms at different levels in the supply chain. Historically, two different sets of guidelines and practices have governed the review of each type of merger, but the Proposed Guidelines integrate them into one set. This change reflects that in increasingly complex markets, it is often difficult to distinguish between purely