Using the Horizontal Merger Guidelines to Evaluate Labor Market Effects of Mergers

For a number of years, the U.S. antitrust agencies have been signaling an increased focus on antitrust enforcement in labor markets. In addition, there have been growing calls for strengthened scrutiny of anticompetitive conduct in labor markets from economists and legal scholars. But, President Biden’s 2021 executive order was the clearest signal to date that labor-related enforcement will likely become a centerpiece of U.S. antitrust policy. Now, the U.S. antitrust agencies are focused on updating the Horizontal Merger Guidelines that will no doubt include labor-market considerations in merger analysis. This development is an indicator that the future of merger review in the U.S. is likely to come with more rigorous investigations into the labor-market effects of proposed transactions and more challenges to transactions on the grounds of substantially lessening competition in labor markets.

By Courtney Dyer, Courtney Byrd & Laura Kaufmann^[1]

I. MERGER REVIEW AND THE HORIZONTAL MERGER GUIDELINES

Following growing calls for antitrust enforcement from economists, legal scholars, and the White House,^[2] the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) (together, the “agencies”) have begun to scrutinize more closely anticompetitive conduct in labor markets, including by assessing the effects of mergers on competition for labor. The DOJ’s recent challenge to a merger based on its labor market effects and the