Red Light, Yellow Light: Prior Approval and Prior Notice in FTC Merger Remedies

Prior approval and prior notice provisions have emerged as one of the most contested features of merger consent orders in recent years. In 2021, the FTC under Lina Khan reinstated prior approval and prior notice provisions as a standard feature of merger consent orders after a twenty-six-year hiatus. The FTC went on to require prior approval provisions in nearly 80% of consent orders. Though the Trump Administration has thus far abandoned its predecessors’ use of prior approval, it has kept us