By Lisa P. Rumin and Anthony S. Ferrara (McDermott Will & Emery)
The December 2023 merger guidelines indicate a shift in perspective from the Federal Trade Commission and the U.S. Department of Justice regarding out-of-market effects, referring to competitive impacts beyond the defined market boundaries.
Firstly, the current antitrust agencies exhibit reluctance towards acknowledging efficiencies originating outside what they define as the relevant market – termed as out-of-market benefits. This stance persists even when a divestiture could maintain these efficiencies while addressing potential concerns within the relevant market.
Conversely, there is a newfound emphasis on evaluating whether market entry or efficiencies within the relevant market could detrimentally affect competition beyond its borders – referred to as out-of-market harms.
Essentially, the current FTC and DOJ consider out-of-market harms but overlook out-of-market benefits in their assessments…
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