FTC And DOJ Issue Final Vertical Merger Guidelines

On June 30, the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ) released their first jointly issued Vertical Merger Guidelines. These Guidelines replace DOJ's Non-Horizontal Merger Guidelines from 1984. Those 1984 guidelines were outdated, did not reflect current agency practices and were withdrawn by DOJ in January 2020. The new Guidelines are intended to describe how the agencies currently analyze non-horizontal transactions and to increase "the transparency of the analytical process underlying the Agencies' enforcement decisions."

Vertical mergers combine companies operating at different stages within a supply chain. The most common form of vertical merger is a firm's combination with an upstream supplier or downstream customer, although the new Guidelines also reference, and apply to, "diagonal" mergers, reflecting the acquisition of a firm within a competing supply chain, and mergers involving "complements" within a supply