The DOJ-FTC 2023 Merger Guidelines: Evolution or Revolution?

The Department of Justice (DOJ) and Federal Trade Commission’s (FTC) newly issued 2023 Merger Guidelines represent an important chapter in the ongoing saga of efforts to reform U.S. antitrust law. Beginning in 1968, merger guidelines have been an important yardstick for both practitioners and courts to gauge the agencies’ approach to merger review, and in particular, the economic framework they will apply to assess whether a transaction may substantially lessen competition. A key policy achievement of the “neo-Brandeisian” leadership at the DOJ and FTC, the 2023 Merger Guidelines attempt to reorient merger policy toward the structure-focused approach of the 1960s, while at the same time account for new economic learnings—a clear challenge to the current enforcement paradigm and a marked shift from the 2010 Horizontal Merger Guidelines issued under the Obama Administration. But are they an improvement upon the existing antitrust framework for analyzing mergers? What will their impact be not just on day-to-day merger enforcement at the agencies, but in the boardroom? Will they prove to be as influential with the courts as prior guidelines?

Watch now to learn more about the ongoing efforts to reform U.S. antitrust law.