Caution, Merging Ahead: The FTC and DOJ’s New Merger Guidelines

New York Law Journal

Karen M. Lent Kenneth B. Schwartz

Partners Karen Lent and Kenneth Schwartz look at the new Merger Guidelines recently unveiled by the FTC and DOJ. The authors discuss how the guidelines, previously updated in 2010, reflect the increasingly aggressive attitude to antitrust enforcement in the United States and abroad. For example, the revamped guidelines:

  • Contain thresholds at which a merger is presumed to be anticompetitive that are significantly lower than the thresholds contained in the 2010 Horizontal Merger Guidelines.
  • Widen the scope of antitrust inquiry by including mergers that may substantially lessen competition in labor markets, resulting in lower wages or slower wage growth, reduced benefits or working conditions, and/or other degradations of workplace quality.
  • Permit the agencies to define very narrow relevant markets within which to assess the competitive impact of an acquisition and to ignore the impact of “significant substitutes” that may not fit within tightly drawn markets.