Procompetitive Effects of Mergers in the 2023 Merger Guidelines: What Counts and Where?

In this article, we provide an overview of the Agencies’ recently updated guidance for the assessment of procompetitive effects of mergers and identify pressure points that the Agencies, merging parties, and courts will have to contend with after the release of the 2023 Merger Guidelines. First, we discuss the broad-brush aspects of the 2023 Merger Guidelines that are reflected in the new guidance for procompetitive effects of horizontal mergers. We then discuss the conditions the Agencies now