State Attorneys General Take a Strong Pro-Enforcement Stance in Comments to Draft Merger Guidelines

On September 18, 2023, nineteen Democratic state attorneys general (AGs) publicly provided feedback on the Draft Merger Guidelines (Draft Guidelines) put forth earlier this year by the U.S. Department of Justice and the Federal Trade Commission (the Agencies). This marks the first attempt to update the Merger Guidelines by the Agencies since 2010. The leaders of the Agencies have expressed that the purpose of these Draft Guidelines is to “reflect the realities of how firms operate in the contemporary economy” and enable the Agencies to “keep pace” as “markets and commercial dynamics evolve.”

The AGs, hailing from states such as California, the District of Columbia, Illinois, New York, Pennsylvania, and Washington, offered comments covering nearly all aspects of the Draft Guidelines. They also recommended revisions to specific sections and appendices concerning market definition and evidence. Although the AGs’ feedback is not legally binding on the Agencies or federal courts, it does provide insight into state antitrust enforcement priorities and potentially indicates the approach the AGs might adopt in interpreting federal and state competition laws. The AGs emphasized that “the Merger Guidelines have historically been important instruments for state antitrust enforcement” in the summary of their comments…

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