Today, the Department of Justice and the Federal Trade Commission (FTC) jointly issued the Merger guidelines for 2023, which outline the factors and frameworks agencies use when reviewing mergers and acquisitions. The 2023 Merger Guidelines are the culmination of a nearly two-year process of public engagement and reflect the realities of the modern market, developments in economics and law, and the lived experiences of a wide range of market participants.
โโThese finalized Guidelines provide transparency into how the Department of Justice protects the American people from the ways in which illegal and anticompetitive practices manifest in our modern economy,โ said Attorney General Merrick B. Garland. โSince we published the draft Merger Guidelines earlier this summer, we have engaged with stakeholders across the country and the Guidelines are stronger as a result. โThe Department of Justice will continue to vigorously enforce laws that safeguard competition and protect all Americans.โ
"The Guidelines we are publishing today are faithful to the law and reflect how competition develops in our modern markets," said Assistant Attorney General Jonathan Kanter of the Department of Justice's Antitrust Division. โEnsuring that our merger enforcement protects that competition is our north star. Competitive markets and economic opportunity for all Americans go hand in hand. We appreciated hearing from authors, nurses, farmers, and other concerned citizens across the country as we worked to develop the 2023 Merger Guidelines. Their feedback was invaluable, and our merger enforcement will be better as a result.โ
โFair, open, and competitive markets have been essential to America's dynamic and prosperous economy, and reining in illegal mergers is our first line of defense against harmful corporate consolidation,โ said FTC Chair Lina M. Khan. . โThe 2023 Merger Guidelines reflect the new realities of how companies do business in the modern economy and ensure fidelity to the legal text and precedents. I appreciate the thousands of comments submitted by American workers, consumers, business owners, farmers, business owners, and other members of the public. โThese inputs directly informed the guidelines and allowed us to continue this work with a deeper understanding of the real risks of merger enforcement.โ
The 2023 Merger Guidelines published today modify the Draft Merger Guidelines, published July 19, to address public comments, including extensive participation from lawyers, economists, academics, policymakers, and other policymakers in the three agency merger guidance workshops. They highlight the dynamic and complex nature of competition, ranging from price competition to competition over terms and conditions of employment and platform competition. This approach allows agencies to evaluate the business realities of the modern United States economy when making enforcement decisions and ensures that merger enforcement protects competition in all its forms.
The agencies protect competition by enforcing antitrust laws and other federal competition statutes. Since 1968, agencies have issued merger guidelines to improve transparency and promote awareness of how agencies conduct merger analysis before deciding whether or not to challenge an acquisition. Over the years, the agencies have worked collaboratively to periodically update the Merger Guidelines to reflect changes in the law and market realities, including in 1982, 1984, 1992, 1997, 2010, and 2020.
The robust process to develop the 2023 Merger Guidelines began in January 2022. The agencies announced an initiative to evaluate potential revisions to the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines and published a Request for information on the execution of mergers, which sought public comment on modernizing merger enforcement. The agencies received more than 5,000 comments. Commenters highlighted excessive market consolidation across industries and overwhelmingly urged agencies to strengthen their approach to merger enforcement. in the agencies four listening sessionsBusiness owners, workers and other advocates similarly highlighted the potential for mergers and acquisitions to undermine open, vibrant and competitive markets, in industries ranging from food and agriculture to health care.
Informed by this feedback, the agencies' experience and expertise, as well as developments in the market, law and economics, the agencies jointly drafted and published a proposed version of the 2023 Merger Guidelines for public comment in July 2023 and received more than 30,000 comments reflecting the views of consumers, workers, academics, interest organizations, attorneys, policymakers, and many others in various sectors of the U.S. economy. The agencies also held three Fusion Guidelines Workshops to discuss the draft merger guidelines. This commitment informed an in-depth review process that culminated in today's publication of the 2023 Merger Guidelines.
Like the previous horizontal and vertical merger guidelines they replace, the 2023 Merger Guidelines are not legally binding in themselves, but provide transparency in the agencies' decision-making process.
The 2023 Merger Guidelines do not predetermine enforcement actions by agencies. Although the Merger Guidelines identify the factors and frameworks that agencies consider when investigating mergers, agencies' enforcement decisions will necessarily depend on the facts in any case and will continue to require discretion and procedural judgment.
