Final Merger Guidelines Released

FOR IMMEDIATE RELEASE: December 18, 2023 

CONTACT: Ashley Woolheater, woolheater@openmarketsinstitute.org

“The two agencies put fealty to law front and center again" 

WASHINGTON - Today, the Justice Department (DOJ) and the Federal Trade Commission (FTC) released their final merger guidelines, stressing that the new guidelines were designed to “reflect the new realities of how firms do business in the modern economy and ensure fidelity to statutory text and precedent.” 

Open Markets Legal Director Sandeep Vaheesan released the following statement on the final 2023 guidelines: 

“The Department of Justice and Federal Trade Commission deserve great credit for revisiting the merger guidelines and adopting a stronger approach to stopping all types of mergers. The two agencies put fealty to law front and center again and seek to implement congressional intent, instead of their own ideological preferences.  

“By relying on market share tests for deciding the legality of certain mergers, the new guidelines are more faithful to the Clayton Act than the 2010 Horizontal Merger Guidelines were. They are also more in accord with empirical research on the effects of mergers and acquisitions, which finds that corporate consolidation can harm democratic balances and institutions, as well as workers, producers, and consumers.  

“In our comments on the draft guidelines, we called on the DOJ and the FTC, in the final guidelines, to adopt lower market share tests to cover consolidations outside the most highly concentrated markets and to reject unequivocally an efficiencies defense for presumptively illegal mergers. Although the agencies stuck with their original approach in the final document, these guidelines are a material improvement over the status quo and will help the two agencies do a better job of stopping and deterring harmful corporate consolidation going forward.” 

Open Markets has, for several years, called for federal regulators to update the merger guidelines in order to more effectively enforce traditional antitrust laws across today’s markets.  

In September, Open Markets led partners including SEIU, Rural Advancement Foundation International-USA (RAFI-USA), Public Citizen, and more, in a comment on ways the FTC and DOJ could strengthen the initial draft guidelines. 

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