The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Antitrust in 2023 was marked by a series of policy developments—some still nascent, some ripe for enforcement for the first time.  In the U.S., the FTC and DOJ finalized their drastically transformed merger guidelines.  In the EU, landmark new digital regulations became applicable for the first time.  And the UK government introduced a bill promising major new digital and consumer protection rules. 

The new draft guidelines depart from decades of practice by introducing novel presumptions that could make it harder for mergers to obtain regulatory clearance from the agencies.

On July 19, 2023, the FTC and DOJ published draft merger guidelines.[1]  Historically, the purpose of these guidelines has been to provide the public, including companies whose transactions are potentially subject to agency review, with information about how the agencies analyze mergers to identify potential competitive harm.  The guidelines have no force of law and are not binding on the courts, though courts have relied on them as persuasive authority to varying degrees.  Past iterations of the guidelines have therefore provided a neutral explanation of the agencies’ approach, including descriptions of the economic tools that they and the courts can use to assess a merger’s likely competitive effects.

Changes Would Multiply Time, Burden, and Expense for All Filings, Even for Transactions With No Competition Concerns

The U.S. FTC and DOJ have proposed sweeping changes to the pre-merger process in the United States under the Hart-Scott-Rodino (HSR) Act.[1] 

The changes would not affect whether a transaction is subject to the reporting requirements.  But for those transactions where an HSR filing is required, the changes would, in a word, be massive.

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed.