The New DOJ/FTC Horizontal Merger Guidelines

Last August, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued revisions to their joint Horizontal Merger Guidelines (HMG). The new HMG represent a substantial departure from the old HMG, and they change in important ways how companies seeking merger clearance (or seeking to influence merger clearance for deals involving suppliers, competitors, or customers) should make their presentations to the agencies. At the risk of over-generalizing, a standard approach to getting merger clearance under the old HMG was to argue that the proposed merger would do no competitive harm. Under the new HMG, merging companies should consider doing more to make the affirmative case for the merger; and doing so might involve greater involvement by those involved in planning for the merger might be necessary.