Antitrust Agencies’ Call for Update of Merger Guidelines Analyzed by Analysis Group Consultants

August 1, 2022

Early in 2022, the Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) jointly announced plans to modernize the Horizontal and Vertical Merger Guidelines. The effort was spurred by the agencies’ announced need to “reflect current learning about competition based on market realities,” as well as to address the evolution of relevant technology, business models, and theories of antitrust harm. To assist in this endeavor, the FTC and DOJ issued a Request for Information (RFI), consisting of nearly 100 questions covering 15 separate issues.

An article by Analysis Group Managing Principals Rebecca Kirk Fair and Aaron Yeater, and Associate Cecilia Caliandro, analyzes the unusual scope and level of detail of the RFI, in order to gain insights into how the merger guideline revision process may unfold, and what the resulting new review process may look like. The three authors discuss which traditional tools may come in for fresh scrutiny, and which new areas are likely to be in the agencies’ sights given recent changes in markets and antitrust thinking. “What is clear from the RFI,” they write, “is that to achieve their goals, the agencies will leave no stone unturned in their efforts to simultaneously preserve past practices and adapt them to the present.”

The article, “Reading (New and Old) Tea Leaves: U.S. Agencies’ Request for Information May Give Insights into the Future of Merger Review,” appears in the journal Antitrust Report.

Read the article