Under the Trump administration, the Antitrust Division of the U.S. Department of Justice (“DOJ”) (and, to some extent, the Federal Trade Commission) has emphasized its role as an antitrust “enforcer” and not a “regulator.” Consistent with that philosophy, Assistant Attorney General Makan Delrahim recently announced that DOJ would withdraw its 2011 Policy Guide to Merger Remedies (“2011 Policy Guide”). The 2011 Policy Guide, among other things, stated the following:
In situations where a merger remedy can protect consumers while otherwise allowing a merger to proceed, appropriate remedies may include … limitations on the firm’s conduct (to ensure that consumers will not be harmed by anticompetitive behavior).
By withdrawing the 2011 Policy Guide, Mr. Delrahim is highlighting DOJ’s stance against conduct-related remedies as a means to address mergers that raise significant anticompetitive concerns. DOJ’s recent effort to block the AT&T/Time Warner transaction—a case where proposed conduct remedies were rejected by DOJ—provides a case in point. Parties to a merger should take note that when confronted with a transaction that may raise serious anticompetitive concerns, proposed fixes that include conduct-related remedies may not be sufficient to address DOJ’s concerns.