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FTC/DOJ to Update Merger Guidelines: Request for Comments Reveals Agencies’ Expected Approach to Merger Enforcement

Antitrust and Competition Law Alert® | January 28, 2022

On January 18, 2022, FTC Chair Lina Khan and DOJ Assistant Attorney General for Antitrust Jonathan Kanter jointly announced a review of the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines (“Merger Guidelines”). This announcement follows the July 9, 2021 Executive Order on Promoting Competition in the American Economy in which President Biden encouraged both agencies to review and consider revising the Merger Guidelines. The review comes at a time of growing calls to use antitrust enforcement to address a wide range of concerns, including inflation, supply chain disruptions, ESG issues, and inequality. As the antitrust landscape continues to evolve, it is critical for merging parties to account for the agencies’ changing approach to enforcement and develop a strategy to navigate the new regulatory environment.

In connection with the review, the agencies issued a Request for Information on Merger Enforcement (“RFI”) identifying “key questions and topics on which [the FTC and DOJ] are particularly keen to receive public comment.” Although the agencies do not expect to finalize the new guidelines until later this year, the RFI provides important insights into the agencies’ current approach to merger enforcement. Indeed, the content and scope of the RFI suggests that the new guidelines will likely present the most significant change to the agencies’ framework for analyzing mergers in decades.

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