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Sullivan & Cromwell Discusses Final DOJ and FTC Merger Guidelines

In July 2023, the Antitrust Division of the U.S. Department of Justice (the “DoJ”) and the Federal Trade Commission (“FTC”) issued Draft Merger Guidelines (available here) for public comment. As discussed in our prior memorandum to clients (available here), the Draft Merger Guidelines articulated a policy more adverse to mergers than policies in place at the DoJ and FTC since 1982, in keeping with public statements by the Biden Administration. On the same day that the DoJ and FTC issued the Draft Merger Guidelines, the President’s Council of Economic Advisers issued a statement (available here) praising them.

Although many commenters criticized the Draft Merger Guidelines, the DoJ and FTC yesterday issued Final Merger Guidelines (available here) which largely track the Draft Merger Guidelines. (A blackline showing the changes is available here.) A few of those changes and their implications are noted below:

Finally, none of the Draft Merger Guidelines, the Final Merger Guidelines, or the press releases accompanying them expressly mentions the DoJ’s 1995 Bank Merger Competitive Review guidelines, on which the DoJ called for public comment in December 2021 (see here). The page of the DoJ’s website listing guidelines and policy statements (available here) continues to link to the 1995 Bank Merger Competitive Review guidelines (and notes that the relevant webpage was updated on December 18, 2023), suggesting that the Bank Merger Competitive Review guidelines remain in place, at least for now.


Unsurprisingly, especially in view of the White House’s immediate endorsement of the Draft Merger Guidelines, the Final Merger Guidelines deviate little in substance from the Draft Merger Guidelines, reflecting the Biden Administration’s ongoing effort to reshape merger law.

It is uncertain whether courts will rely on the Final Merger Guidelines when construing the antitrust laws in future merger litigation. Guided by the analytical rigor of prior guidelines, courts have embraced the consensus framework that existed under the Reagan, Bush, Clinton, Bush, Obama, and Trump Administrations, even though the guidelines are not binding and lack the force of law. The Final Merger Guidelines depart from, or even ignore, many decisions based on that consensus framework, relying instead on either older precedents or theories that have not prevailed in court. Court acceptance or rejection of the Final Merger Guidelines will be an important development to watch in the coming years, as will potential revision of the Final Merger Guidelines by future Administrations. The range of the potential outcomes of these developments will be important for merging parties to take into consideration when planning mergers and acquisitions and negotiating deal terms with counterparties, including those related to timing, obligations to accept regulatory-imposed conditions, obligations to litigate, control of strategy, and reverse termination fees.


[1] Case 27/76, United Brands v. European Commission, 65.

This post comes to us from Sullivan & Cromwell LLP. It is based on the firm’s memorandum, “DoJ and FTC Issue Final Merger Guidelines,” dated December 19, 2023, and available here.

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