U.S. Antitrust Enforcers Propose Much-Anticipated Revised Merger Guidelines

On July 19, 2023, the Department of Justice and the Federal Trade Commission (FTC) jointly released draft Merger Guidelines to amend and update both the 2010 Horizontal Merger Guidelines and the Vertical Merger Guidelines that were issued in 2020 and later rescinded by the FTC in 2021.

Key Takeaways

• The draft guidelines, when finalized by the agencies, will not be law, but past merger guidelines have been persuasively cited by courts.
• The draft guidelines are the first to cite case precedents, but many of the cited cases are several decades old, and several recent merger challenge defeats suggest that the agencies and the courts may have different interpretations of existing law.