On December 18, 2023, the Federal Trade Commission and the Department of Justice, collectively referred to as the “Agencies,” jointly released the Final Merger Guidelines. This issuance followed a public comment period on the Proposed Merger Guidelines initially presented in July. The Final Merger Guidelines serve as updates, replacing the 2010 Horizontal Merger Guidelines and the revoked 2020 Vertical Merger Guidelines. Key elements from the Proposed Merger Guidelines, such as lower thresholds that categorize specific transactions as presumptively illegal and a focus on the cumulative effects of multiple acquisitions, have been retained in the Final Merger Guidelines.
Noteworthy deviations from previous versions include the introduction of a market share threshold for determining when a transaction is presumed illegal, an expanded definition of vertical mergers to encompass those involving “related” products or services, and a formal endorsement of the current Administration’s emphasis on assessing the impact of mergers on labor.
Distinguishing itself from the now-defunct 2010 and 2020 guidelines, the Final Merger Guidelines establish lower thresholds for post-merger industry concentration, resulting in a presumption of illegality for a broader range of transactions. These revised thresholds subject many previously unproblematic transactions to heightened scrutiny. The Final Merger Guidelines delineate these new thresholds as follows…