FTC and Justice Department Release 2023 Merger Guidelines Reflecting Modern Market Realities

Mergers and AcquisitionsImage by Gerd Altmann

The Federal Trade Commission (FTC) and the Justice Department have unveiled the 2023 Merger Guidelines, a comprehensive document outlining the factors and frameworks used by these agencies in reviewing mergers and acquisitions. The guidelines are the product of nearly two years of public engagement, embodying the current realities of the market, advancements in economics and law, and the experiences of diverse market participants.

The 2023 Merger Guidelines, which modify the draft version released on July 19, 2023, were shaped by feedback from the public, including attorneys, economists, academics, enforcers, and other policymakers who participated in the agencies’ three Merger Guidelines Workshops. The guidelines underscore the dynamic and multifaceted nature of competition—from price competition to employment terms and conditions, to platform competition—allowing the agencies to accurately assess the commercial realities of America’s modern economy when making enforcement decisions.

Since 1968, the FTC and the Justice Department have issued merger guidelines to increase transparency and raise awareness about how they analyze mergers before deciding whether or not to challenge an acquisition. Over the years, these guidelines have been periodically updated to reflect changes in law and market realities, with revisions made in 1982, 1984, 1992, 1997, 2010, and 2020.

The process to develop the 2023 Merger Guidelines commenced in January 2022, with the agencies announcing an initiative to consider possible revisions to the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. They published a Request for Information on Merger Enforcement, seeking public comment on modernizing merger enforcement. More than 5,000 comments were received, with many highlighting excessive market consolidation across industries and urging the agencies to strengthen their approach to merger enforcement.

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The final guidelines, informed by this feedback and the agencies’ experience and expertise, were drafted and jointly released for public comment in July 2023. Over 30,000 comments were received, reflecting the perspectives of consumers, workers, academics, interest organizations, attorneys, enforcers, and many others across various sectors of the American economy.

While the 2023 Merger Guidelines replace the prior horizontal and vertical merger guidelines, they are not legally binding. Instead, they offer transparency into the agencies’ decision-making process. Importantly, these guidelines do not predetermine enforcement action by the agencies. Although they outline the factors and frameworks the agencies consider when investigating mergers, enforcement decisions will continue to depend on the facts of each case and require prosecutorial discretion and judgment.

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