The U.S. Department of Justice Antitrust Division, one of the two federal antitrust authorities, recently released an updated version of its Policy Guide to Merger Remedies. This guide, which replaces the previous 2004 version, reflects changes in the merger landscape and in U.S. merger enforcement policy. In particular, the new policy guide affirms the Antitrust Division’s evolving attitude towards the use of conduct remedies to resolve competitive concerns, particularly for vertical mergers, i.e., mergers between parties situated at different levels of the supply chain.
The policy guide is a tool used by Antitrust Division staff in analyzing proposed remedies in merger matters and is also intended to provide transparency to the business community, antitrust practitioners, and the broader public regarding the Antitrust Division's approach to merger remedies. Key principles applied in analyzing merger remedies remain the same in the latest version of the guide, and include: (1) effectively preserving competition is the key to an appropriate merger remedy; (2) remedies should focus on preserving competition, not protecting individual competitors; and (3) remedies must be based on careful application of legal and economic principles to the particular facts of a specific case.
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