The Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) issued a final revised version of their Merger Guidelines (the “2023 Merger Guidelines”) last month following a thorough review, which included a 60-day public comment period on the draft Merger Guidelines released in July 2023 (the “Draft Guidelines”).
The 2023 Merger Guidelines are significant because they identify and explain the FTC’s and DOJ’s merger enforcement policies and practices with respect to all M&A transactions, including deals that do not trigger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”). They also reflect the first revisions to the Horizontal Merger Guidelines in nearly 14 years. As always, while they are important, the 2023 Merger Guidelines do not have the force of law. Courts will have the final word on the agencies’ new approach to merger enforcement.
