Justice Department and Federal Trade Commission Unveil 2023 Merger Guidelines in Response to Modern Market Dynamics

The U.S. Justice Department and the Federal Trade Commission (FTC) have jointly released the 2023 Merger Guidelines, outlining the factors and frameworks employed by the agencies in their scrutiny of mergers and acquisitions. The guidelines, the result of nearly two years of public engagement, reflect the evolving landscape of modern markets, advancements in economics and law, and insights gleaned from a diverse range of market participants.

Attorney General Merrick B. Garland emphasized the importance of these guidelines in ensuring transparency and protecting the American people from unlawful and anticompetitive practices. He stated, “The Justice Department will continue to vigorously enforce the laws that safeguard competition and protect all Americans.”

Assistant Attorney General Jonathan Kanter of the Justice Department's Antitrust Division highlighted the focus on ensuring that merger enforcement preserves competition in today's dynamic markets. He expressed gratitude for the valuable input received from a wide array of stakeholders, including authors, nurses, farmers, and citizens nationwide, which enriched the guidelines during their development.

FTC Chair Lina M. Khan underscored the significance of fair and competitive markets as crucial to America's thriving economy. The 2023 Merger Guidelines, according to Khan, reflect new market realities and remain faithful to statutory text and precedent. She expressed gratitude for the thousands of comments submitted by various segments of the public, emphasizing their vital role in shaping the guidelines.

The released guidelines, building upon the Draft Merger Guidelines published on July 19, underwent modifications based on extensive public comments, including contributions from attorneys, economists, academics, and policymakers at the agencies’ three Merger Guidelines Workshops. They underscore the dynamic and complex nature of competition, ranging from price competition to terms and conditions of employment, to platform competition. This approach allows the agencies to assess the commercial realities of the modern U.S. economy when making enforcement decisions, ensuring that merger enforcement protects competition in all its forms.

The agencies' commitment to transparency is reflected in their periodic updates to the Merger Guidelines since 1968, with revisions in 1982, 1984, 1992, 1997, 2010, and 2020. The 2023 Merger Guidelines, not legally binding themselves, offer insights into the agencies’ decision-making processes.

The development of the 2023 Merger Guidelines commenced in January 2022, involving a comprehensive initiative to evaluate revisions to the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. A Request for Information on Merger Enforcement was published, soliciting public input on modernizing merger enforcement. Over 5,000 comments were received, reflecting concerns about excessive market consolidation across industries.

In response to feedback, agency expertise, and market developments, the proposed 2023 Merger Guidelines were released for public comment in July 2023, receiving over 30,000 comments from various sectors. The release of the final guidelines follows a thorough revision process, incorporating diverse perspectives to address the complexities of modern mergers.

While the 2023 Merger Guidelines provide a framework for the agencies' merger analysis, they do not predetermine enforcement actions. The agencies' decisions will hinge on case-specific facts, requiring prosecutorial discretion and judgment. The guidelines aim to enhance transparency, promote awareness, and adapt to the ever-changing landscape of competition in the United States.

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