The Justice Department and the Federal Trade Commission have finalized a new set of guidelines that lay out the framework the two agencies will use when investigating future mergers.
The process for crafting the 11 guidelines began in January 2022, following President Biden's executive order directing the two agencies to review the previous ones. The new guidelines will replace a framework implemented in 2020 for reviewing mergers.
DOJ says in a press release the new guidelines "are not themselves legally binding," but they do "provide transparency into the agencies’ decision-making process."
"These finalized Guidelines provide transparency into how the Justice Department is protecting the American people from the ways in which unlawful, anticompetitive practices manifest themselves in our modern economy,” Attorney General Merrick Garland says in the release.
An analysis of the final guidelines by the law firm Crowell & Morning says they retained the Biden administration's core priority of enhancing merger enforcement, including lowering thresholds for assessing market concentration. But the analysis says the final guidelines also softened some language from the proposed version.
"It remains to be seen whether the Agencies will challenge mergers under these lowered thresholds, and whether courts will agree with their market-concentration presumptions," the analysis says.
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The guidelines are as follows:
Guideline 1: Mergers Raise a Presumption of Illegality When They Significantly Increase Concentration in a Highly Concentrated Market.
Guideline 2: Mergers Can Violate the Law When They Eliminate Substantial Competition Between Firms.
Guideline 3: Mergers Can Violate the Law When They Increase the Risk of Coordination.
Guideline 4: Mergers Can Violate the Law When They Eliminate a Potential Entrant in a Concentrated Market.
Guideline 5: Mergers Can Violate the Law When They Create a Firm That May Limit Access to Products or Services That Its Rivals Use to Compete.
Guideline 6: Mergers Can Violate the Law When They Entrench or Extend a Dominant Position.
Guideline 7: When an Industry Undergoes a Trend Toward Consolidation, the Agencies Consider Whether It Increases the Risk a Merger May Substantially Lessen Competition or Tend to Create a Monopoly.
Guideline 8: When a Merger is Part of a Series of Multiple Acquisitions, the Agencies May Examine the Whole Series.
Guideline 9: When a Merger Involves a Multi-Sided Platform, the Agencies Examine Competition Between Platforms, on a Platform, or to Displace a Platform.
Guideline 10: When a Merger Involves Competing Buyers, the Agencies Examine Whether It May Substantially Lessen Competition for Workers, Creators, Suppliers, or Other Providers.
Guideline 11: When an Acquisition Involves Partial Ownership or Minority Interests, the Agencies Examine Its Impact on Competition.
Farm Action, an agriculture group focused on competition issues, applauded the new guidelines, saying they "represent a significant shift away from the past 40 years’ lax approach to antitrust enforcement."
“These new merger guidelines will help restore economic freedom and strengthen our democracy,” Farm Action co-founder and chief strategy officer Joe Maxwell said in a release.
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