DOJ/FTC Publish Draft Vertical Merger Guidelines

On January 10, 2020, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) released draft guidelines outlining the framework that the US antitrust authorities will use to analyze vertical mergers. (Draft Vertical Merger Guidelines).¹ The Draft Vertical Merger Guidelines are intended to supplant the 1984 DOJ Non-Horizontal Merger Guidelines,² which did not reflect the actual analysis used by the DOJ and FTC in recent years. Simultaneously, the agencies officially withdrew the 1984 Guidelines.³ The agencies have announced a 30-day comment period for the Draft Vertical Merger Guidelines.

The Draft Vertical Merger Guidelines echo current agency practice and are consistent with the past speeches by FTC and DOJ officials,⁴ but they do not offer as much guidance and detail as the 2010 Horizontal Merger Guidelines. Moreover, two FTC Commissioners dissented from the decision to issue these draft guidelines,⁵ signaling the potential for dissents to the final