On July 9, 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy (the “EO”). The EO casts a wide net, encompassing many industries, including health care.
Among other things, the EO directs the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) to “review the horizontal and vertical merger guidelines and consider whether to revise those guidelines.” In response, FTC Commission Chair Lina Kahn and Acting Assistant Attorney General of the DOJ Antitrust Division Richard Powers issued a statement:
We must ensure that the merger guidelines reflect current economic realities and empirical learning and that they guide enforcers to review mergers with the skepticism the law demands. The current guidelines deserve a hard look to determine whether they are overly permissive. We plan soon to jointly launch a review of our merger guidelines with the goal of updating them to reflect a rigorous analytical approach consistent with applicable law.
It is interesting to note that the horizontal merger guidelines were last revised in 2010 under the Obama administration, and at that time, the changes were noted to include an expanded theory of harm, and to be more flexible than the prior version. Whether the requested reviews will result in further changes remains to be seen.
On a related subject, see Epstein Becker Green’s new blog post addressing the EO’s potential impact on non-compete provisions.