The Justice Department and the Federal Trade Commission (FTC) have jointly issued the 2023 Merger Guidelines, outlining factors and frameworks used in reviewing mergers and acquisitions. This release marks the end of a nearly two-year process involving public engagement and reflects current market conditions, advancements in economics and law, as well as experiences from diverse market participants.
“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,” said Attorney General Merrick B. Garland. “Since releasing the Draft Merger Guidelines earlier this summer, we have engaged with stakeholders across the country, and the Guidelines are stronger as a result. The Justice Department will continue to vigorously enforce the laws that safeguard competition and protect all Americans.”
Assistant Attorney General Jonathan Kanter of the Justice Department's Antitrust Division stated, “The Guidelines we release today are faithful to the law and reflect how competition plays out in our modern markets. Ensuring that our merger enforcement protects that competition is our North Star. Competitive markets and economic opportunity for all Americans go hand in hand. We were grateful to hear from authors, nurses, farmers, and other concerned citizens from across the country as we worked to put together the 2023 Merger Guidelines. Their comments were invaluable — and our merger enforcement will be better as a result.”
FTC Chair Lina M. Khan emphasized the importance of competitive markets: “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. The 2023 Merger Guidelines reflect the new realities of how firms do business in the modern economy and ensure fidelity to statutory text and precedent. I am grateful for the thousands of comments submitted by American workers, consumers, entrepreneurs, farmers, business owners, and other members of the public. This input directly informed the guidelines and allowed us to pursue this work with a deeper understanding of the real-life stakes of merger enforcement.”
The new guidelines modify those released on July 19 following extensive public feedback during three Merger Guidelines Workshops attended by attorneys, economists, academics, enforcers, and policymakers. They address various forms of competition including price competition, employment terms conditions competition, and platform competition.
Since 1968, these agencies have periodically updated merger guidelines to reflect legal changes and market realities; previous updates occurred in 1982, 1984, 1992, 1997, 2010, and 2020.
In January 2022, an initiative was launched to revise both Horizontal Merger Guidelines (2010) and Vertical Merger Guidelines (2020). A Request for Information on Merger Enforcement was published seeking public comment on modernization efforts. Over 5,000 comments were received highlighting excessive market consolidation across industries.
Despite being non-binding legally like prior guidelines they replace; these new guidelines provide insight into agency decision-making processes without predetermining enforcement actions.
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