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US Unveils 2023 Merger Guidelines for Fair and Competitive Markets

 |  December 18, 2023

US antitrust enforcers, led by the Justice Department, have officially released the much-anticipated 2023 Merger Guidelines, a crucial step in President Joe Biden’s broader effort to strengthen antitrust enforcement and promote fair, open, and competitive markets.

The guidelines, which describe the factors and frameworks employed by the Federal Trade Commission (FTC) and the Justice Department when reviewing mergers and acquisitions, were unveiled on Monday.

In a statement, Attorney General Merrick Garland emphasized the importance of these guidelines in maintaining transparency and safeguarding the American people from unlawful, anticompetitive practices in the modern economy. Garland stated, “These finalized guidelines provide transparency into how the Justice Department is protecting the American people from the ways in which unlawful, anticompetitive practices manifest themselves in our modern economy.”

The drafting process began with the release of a preliminary version in July, following President Biden’s executive order in mid-2021 calling for updates to existing merger guidelines. The Biden administration has taken a tougher stance on mergers, as evidenced by its willingness to file aggressive challenges in court, yielding mixed results.

Recent challenges include the Federal Trade Commission’s opposition to Sanofi’s plan to license a drug for a rare disease, resulting in Sanofi abandoning the proposed license. The Justice Department is also eagerly awaiting a ruling from a Boston federal judge on its bid to halt JetBlue Airways’ $3.8 billion acquisition of Spirit Airlines.

The 2023 Merger Guidelines are the culmination of a nearly two-year process that involved extensive public engagement, taking into account the perspectives of various market participants, including workers, consumers, entrepreneurs, farmers, and business owners. The guidelines are designed to reflect modern market realities, advancements in economics and law, and the lived experiences of a diverse array of stakeholders.

FTC Chair Lina M. Khan underscored the significance of fair, open, and competitive markets in sustaining America’s dynamic economy. “Fair, open, competitive markets have been essential to America’s dynamic, thriving economy, and policing unlawful mergers is our front line of defense against harmful corporate consolidation,” she stated. Khan expressed gratitude for the thousands of comments submitted by the public, emphasizing how this input directly informed the guidelines and provided a deeper understanding of the real-life implications of merger enforcement.

Attorney General Garland reiterated the Justice Department’s commitment to robustly enforcing laws that safeguard competition and protect all Americans. “The Justice Department will continue to vigorously enforce the laws that safeguard competition and protect all Americans,” he affirmed.

The release of the 2023 Merger Guidelines marks a significant milestone in the Biden administration’s efforts to address corporate consolidation and ensure a level playing field in the business landscape. As these guidelines take effect, businesses and stakeholders across the nation will be closely watching their impact on future mergers and acquisitions.

Source: FTC Gov