Antitrust Chronicle® – Merger Guidelines

Dear Readers,

The U.S. Justice Department first published merger guidelines in 1968, with the goal of providing transparency to the standards applied in reviewing mergers. Since then, the agencies have updated the guidelines numerous times.

In early 2022, the FTC and the antitrust division of the DOJ launched a new review into the guidelines, with a view to taking into account “developments in the modern economy and new evidence of mergers’ effects on competition.” As this might suggest, the revised guidelines (when adopted) may signal a more interventionist stance from the agencies. Indeed, recent statements by the agency heads suggest that new merger guidelines may replace the tried-and-tested consumer welfare standard with a series of alternate goals, reflecting the so-called “neo-Brandeisian” school of antitrust.

The pieces in this volume address the potential revisions to the merger guidelines, with each author taking a distinctive stance on the issues – some cautious and others more welcoming of change.

Maureen K. Ohlhausen & Taylor Owings open with the blunt assessment that such neo-Brandeisian policies would chill acquisitions and potentially remove from the competitive race the companies that often have the best prospects for de-consolidating many markets, including digital markets that are prone to tipping.

Mark Israel, Jonathan Orszag & Jeremy Sandford also comment on this possible policy shity. Proponents of the shift see a need