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Biden Antitrust Agencies Bring Fewer Merger Enforcement Actions, but Attempt to Chill Deal Activity in Other Ways

 |  May 26, 2023

By: Ryan Quillian & Mathias Heller (Covington & Burling)

Looking at the headlines related to competition law, one might easily get the impression that U.S. antitrust agencies have been increasingly challenging mergers in recent years. However, the actual numbers present a different picture: during the first two years of the current Administration, the rate of federal enforcement actions related to mergers has actually decreased. While the agencies are aiming to discourage transactions, they are primarily relying on strong rhetoric and procedural changes that raise the costs of deal-making and introduce more uncertainty into agency decision-making. This approach does not involve a significant increase in adjudicative enforcement activity.

If one were to rely solely on recent media coverage, it would be understandable for observers of the U.S. antitrust landscape to miss this trend. Commentators and advocates persistently portray the current state of merger enforcement actions as substantial. An attorney from the American Economic Liberties Project claimed that the agencies have successfully blocked a record number of deals in the past two years, while another antitrust commentator stated that the Antitrust Division has filed a record number of cases in recent years. Similarly, Bloomberg asserted that U.S. enforcers have approximately doubled their efforts to prevent mergers under the Biden administration…