The U.S. Department of Justice, Antitrust Division (DOJ), and the Federal Trade Commission (FTC) (and together, the “Agencies”) have released long-anticipated draft merger guidelines (the “2023 Draft Guidelines”) that articulate the Agencies’ policies in reviewing proposed mergers. The 2023 Draft Guidelines adopt an approach that is generally skeptical – even hostile – to mergers. Coupled with the recent announcement of proposed massive changes to the HSR Form, the 2023 Draft Guidelines augur longer, more involved merger reviews, and appear aimed at discouraging merger activity. This is not surprising in light of the Agencies’ rhetoric and enforcement activity during the Biden Administration.
The 2023 Draft Guidelines lay out 13 high-level principles, citing the text of the antitrust laws as well as Supreme Court cases interpreting those laws, and rely much less on economic tests compared to prior Guidelines. Tellingly, a majority of the citations are to cases that pre-date the shift in U.S. antitrust jurisprudence in the 1970s with Supreme Court decisions in cases like General Dynamics and Sylvania. See United States v. Gen. Dynamics Corp., 415 U.S. 486 (1974); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977). In particular, the Agencies not only underscore the so-called “structural presumption” (as discussed below under Guideline 1) – aiming to make it easier to block mergers on the basis of market shares alone – they also express deep skepticism toward “rebuttal” evidence often cited by merging parties, and accepted by courts for decades, showing that market shares do not accurately reflect the merger’s impact on competition. Under modern antitrust precedent and economic thinking, this evidence – relating, for example, to the declining position of one of the merging firms, entry and repositioning, and procompetitive efficiencies – is critical to the proper assessment of a merger’s competitive effects.
Superficially, the top-level principles (such as, “Mergers should not eliminate substantial competition between firms”) appear conventional and largely consistent with prior Guidelines. The Agencies’ further articulation of these principles, however, represents a significant break with recent past practice. In addition, the 2023 Draft Guidelines provide fewer specific guideposts and illustrative examples to help companies and practitioners predict enforcement outcomes.
There is significant reason to doubt that the Agencies’ policies – reflected in the 2023 Draft Guidelines – will be embraced by the courts, especially today’s Supreme Court. But the Agencies have been pursuing investigations and litigation advancing these principles throughout the Biden Administration, making the 2023 Draft Guidelines an important document for understanding the Agencies’ priorities and likely investigative paths.
The 13 Guidelines are listed here, together with our reactions to the impact of each:
- Guideline 1: Mergers Should Not Significantly Increase Concentration in Highly Concentrated Markets.
- What it means: The Agencies are laser focused on market shares as a standard for judging which mergers to investigate and challenge. The Agencies double down on a market share-based “structural presumption” that mergers leading to a 30%+ combined post-merger market share are presumptively illegal under the Supreme Court’s United States v. Philadelphia National Bank decision, 374 U.S. 321 (1963) – with less emphasis on the holistic, economics-driven assessment of competitive effects reflected in the 2010 Guidelines and modern antitrust precedent. Market shares have typically played a key role in assessing mergers and the Agencies have long invoked the structural presumption in litigation, but the 2023 Draft Guidelines make clear that the Agencies will focus, even at the investigation phase, on mergers resulting in market shares lower than those that have been challenged successfully in recent decades. In particular, the Agencies have lowered the threshold for determining when a merger results in a “highly concentrated market” to the level from the Guidelines issued in the 1980s and 1990s.
- Guideline 2: Mergers Should Not Eliminate Substantial Competition between Firms.
- What it means: The Agencies view the elimination of current competition between merging companies as a reason to challenge a merger, without the necessity of establishing through economic analysis that it will actually impact consumers. Historically, economic analysis has played a prominent role in the Agencies’ internal analysis and in merger challenges in court. The 2023 Draft Guidelines relegate economic analysis to the Appendix as something that the Agencies may “sometimes” do.
The Agencies are accepting public comments through September 18, 2023. Link to 2023 Draft Guidelines: https://www.justice.gov/d9/2023-07/2023-draft-merger-guidelines_0.pdf