24 January 2020
Last week, the U.S. Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice jointly released draft 2020 Vertical Merger Guidelines for public comment. This much anticipated update to the 1984 Non-Horizontal Merger Guidelines, provides an analytical framework into how the FTC and DOJ evaluate the competitive effects of vertical mergers. While Assistant Attorney General Makan Delrahim asserts the draft Guidelines reflect “new economic understandings” and FTC Chairman Joseph Simons states they provide “greater transparency,” the analytical framework outlined is not groundbreaking. Perhaps more noteworthy is the fact that the two Democratic FTC Commissioners abstained from voting on the Guidelines, which they did not think were aggressive enough. It is clear, however, the release of these Guidelines confirm that vertical mergers will continue to be an enforcement priority for both the FTC and DOJ.