The DOJ Issues Modernized Merger Remedies Manual

The Department of Justice issued the Merger Remedies Manual, which provides a framework for the Antitrust Division to structure and implement appropriate relief that preserves competition in merger cases. The Merger Remedies Manual updates the Antitrust Division’s 2004 Policy Guide to Merger Remedies.

“The modernized Merger Remedies Manual reflects our renewed focus on enforcing obligations in consent decrees and reaffirms the Division’s commitment to effective structural relief,” said Assistant Attorney General Makan Delrahim of the Department of Justice’s Antitrust Division. “It will provide greater transparency and predictability regarding the Division’s approach to remedying a proposed merger’s competitive harm.”

The Merger Remedies Manual is the first revision of the Antitrust Division’s remedies manual in nearly a decade and reflects important changes in the merger landscape over that time.  The modernized document includes new sections explaining the approach that the division takes with consummated transactions and upfront buyers.  In addition, the Merger Remedies Manual outlines certain “red flags” that in the division’s experience increase the risk that a remedy will not preserve competition effectively.  Finally, the manual reflects important principles implemented in recent Antitrust Division consent decrees, such as when it may be appropriate to name the divestiture buyer as a party to the consent decree or when it may be appropriate that the divestiture include assets beyond the overlapping relevant markets.

The Merger Remedies Manual outlines the following key principles that apply to structuring and implementing remedies in all the Antitrust Division’s merger cases, both horizontal and vertical:

• Remedies must preserve competition.
• Remedies should not create ongoing government regulation of the market.
• Temporary relief should not be used to remedy persistent competitive harm.
• The remedy should preserve competition, not protect competitors.
• The risk of a failed remedy should fall on the merging parties, not on consumers.
• The remedy must be enforceable.