Agenda

FEDERAL TRADE COMMISSION – FTC AND DOJ SEEK COMMENT ON DRAFT MERGER GUIDELINES

01/08/2023

he Federal Trade Commission and the Department of Justice released a draft update of the Merger Guidelines on July 19th, which describe and guide the agencies’ review of mergers and acquisitions to determine compliance with federal antitrust laws. The goal of this update is to better reflect how the agencies determine a merger’s effect on competition in the modern economy and evaluate proposed mergers under the law. 

The draft Merger Guidelines clarify frameworks set out in previous versions and describe the framework in greater depth together with the tools that may be used when analyzing a merger with respect to each guideline. They also make clear that they are not a substitute for the law itself, and do not create new rights or obligations. 

In particular, said guidelines give an overview of thirteen principles that the agencies may use when determining whether a merger is unlawfully anticompetitive under the antitrust laws.  These are as follows:

  1. Mergers should not significantly increase concentration in highly concentrated markets.  
  2. Mergers should not eliminate substantial competition between firms.  
  3. Mergers should not increase the risk of coordination.  
  4. Mergers should not eliminate a potential entrant in a concentrated market.
  5. Mergers should not substantially lessen competition by creating a firm that controls products or services that its rivals may use to compete.
  6. Vertical mergers should not create market structures that foreclose competition.  
  7. Mergers should not entrench or extend a dominant position.
  8. Mergers should not further a trend toward concentration. 
  9. When a merger is part of a series of multiple acquisitions, the agencies may examine the whole series. 
  10. When a merger involves a multi-sided platform, the agencies examine competition between platforms, on a platform, or to displace a platform.
  11. When a merger involves competing buyers, the agencies examine whether it may substantially lessen competition for workers or other sellers.
  12. When an acquisition involves partial ownership or minority interests, the agencies examine its impact on competition. 
  13. Mergers should not otherwise substantially lessen competition or tend to create a monopoly.

Both agencies encourage the public to review the draft and provide feedback through a public comment period that will last 60 days which is until September 18,2023.    

(Federal Trade Commision – 19.07.2023)

 

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