U.S. Agencies Finalize Premerger Guidelines

In late December, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the final version of their guidelines for merger reviews. The Metals Service Center Institute (MSCI) and other business trade associations have opposed any changes to the merger guidelines since existing guardrails, which flow from the time-tested consumer welfare standard, provide certainty to businesses while protecting consumers.

Although these final guidelines will not be binding in federal courts, they reflect the Biden administration’s competition policy and provide guidance on the agencies’ enforcement priorities.

As the experts from Gibson Dunn, a multinational law firm, explain, “the final guidelines continue to reflect the agencies’ increased skepticism of merger and acquisition activity, especially in concentrated markets, and attempt to revive seldom-used and novel theories of competitive harm, including some based on case law from many decades ago.” Read more from here.

As a reminder, last August MSCI, U.S. Chamber of Commerce (USCC), and a coalition of more than one dozen other groups asked the two agencies to extend the comment period on their merger guidelines. That letter, available here, explained that a typical year sees more than 2,000 mergers whose aggregate value approaches $3 trillion. The new guidelines could impact all of these transactions.