Yesterday, the Federal Trade Commission and Department of Justice issued revised Horizontal Merger Guidelines. The Merger Guidelines, now revised several times over the past 40 years, set forth how the antitrust agencies review horizontal mergers and also provide the agencies’ view as to how courts should evaluate these deals.
This past winter, the FTC and DOJ held a series of workshops to discuss possible revisions to the Merger Guidelines, which the agencies had not revised since 1997. In April of this year, the agencies previewed their proposed revisions to the Merger Guidelines and sought public comment on the initial draft. As expected, the final version of the Merger Guidelines, released on August 19, contains only a few minor changes from the April draft.
As we outlined in a previous Alert, the new Merger Guidelines significantly change the structure of the Guidelines and generally reflect a more aggressive approach to merger analysis than the previous versions. However, they do not dramatically raise the bar for mergers, but instead reflect largely mainstream antitrust principles. In addition, the new Merger Guidelines more accurately describe the current state of merger review at the agencies.
For a discussion of the reasons the agencies revised the Merger Guidelines, a summary of the most important changes and the expected impact of the revisions, please see our previous Commentary.