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DOJ/FTC Draft Merger Guidelines: More Second Requests and More Merger Litigation

By  |  August 2, 2023

By:  Michael Weiner, Lee Berger, Doug Green, John Kavanagh, Pantelis Michalopoulos & Damon Kalt (Steptoe Antitrust)

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    On July 19, 2023, the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) finally unveiled the much-awaited proposed Merger Guidelines. As anticipated, these guidelines reflect a significantly more rigorous enforcement approach. Surprisingly, the proposed Guidelines draw on citations from Supreme Court cases dating back to the 1960s and 1970s, and even some older cases, which may prompt antitrust lawyers to revisit opinions that have long been overshadowed by economic principles in mainstream antitrust analysis.

    Although a comprehensive assessment of the potential impact of these Guidelines on merger enforcement will take time and may involve revisions after the 60-day notice and comment period, a preliminary review of the text reveals some noteworthy points…

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