Clifford Chance

The FTC and DOJ Propose New Merger Guidelines

July 20, 2023

On July 19, 2023, the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission (collectively, the "Agencies") published a draft of new Merger Guidelines (the "Guidelines"). As expected, the 51-page document dramatically overhauls the prior merger guidelines and advances the Agencies' aggressive enforcement agenda. Notable changes are that the Agencies: (1) warn that any merger that significantly increases market concentration and creates a firm with a share over 30 percent presents "an impermissible threat of undue concentration"; (2) emphasize that the agencies will review transactions for possible anticompetitive effects in labor markets; (3) revive the entrenchment theory of competitive harm from FTC v. Procter & Gamble Co. (1967); (4) enhance scrutiny of serial acquisitions and partial ownership; and (5) include a catch-all section stating that the Agencies may pursue cases that fall outside their articulated theories of harm.

The Guidelines are built around 13 "core" guidelines, discussed below. Although these guidelines reveal how the Agencies will analyze and investigate mergers, courts have no obligation to follow them. Indeed, many of the guidelines likely will face an uphill battle in the courts.

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