On July 19, 2023, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (collectively, “the Agencies”) issued a new set of merger guidelines in draft form for public comment (the “Draft Guidelines”). The Draft Guidelines, if adopted, will replace the Horizontal Merger Guidelines issued in 2010 and the Vertical Merger Guidelines issued in 2020 (the latter of which the FTC withdrew in September 2021). The updates make significant changes to the guidelines, such as:
- Lowering the thresholds for when the Agencies are likely to presume that horizontal mergers are illegal;
- Including—for the first time—a presumption of illegality for certain vertical mergers;
- Adding guidelines focused on serial acquisitions and acquisitions of potential competitors;
- Introducing concepts related specifically to multi-sided “platforms”; and
- Explicitly addressing the effects of transactions on labor markets for the first time.