US antitrust enforcers release final version of merger guidelines

U.S. Attorney General Merrick Garland speaks during a meeting of the Reproductive Rights Task Force at the Justice Department in Washington, U.S., Dec 4, 2023. REUTERS/Evelyn Hockstein/File photo

WASHINGTON  –Mergers in markets where there are a few big players will receive tougher scrutiny under guidelines that were finalized on Monday and released by the Justice Department, which works with the Federal Trade Commission to enforce antitrust law.

The department said the new merger guidelines are aimed at encouraging fair, open and competitive markets.

“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,” Attorney General Merrick Garland said in a statement.

One change from the 2010 guidelines is that the 2023 version expanded the definition of a “highly concentrated market.” Mergers in highly concentrated markets are more likely to face opposition from government enforcers.

The guidelines also lay the groundwork for tougher scrutiny of planned mergers by Big Tech companies like Amazon.com and Alphabet’s Google, both of which also face big lawsuits filed by the federal government.

READ: Dealmakers grapple with unprecedented U.S. challenge to mergers

The 51 pages of guidelines described, without naming them, deals like Amazon.com’s 2018 acquisition of video doorbell maker Ring, and said the antitrust agencies should scrutinize them.

“A platform operator that is also a platform participant may have a conflict of interest whereby it has an incentive to give its own products and services an advantage over other participants competing on the platform,” the guidelines say.

The draft guidelines were released in July, and followed President Joe Biden’s call for them to be updated in a mid-2021 executive order.

READ: US FTC argues Microsoft’s deal to buy Activision should be blocked

The Biden administration has taken a tougher stance on mergers, filing some aggressive challenges in court with mixed results.

Just this month, the FTC challenged Sanofi’s plan to license a drug for a rare disease, and Sanofi scrapped the planned license. The Justice Department is awaiting a Boston federal judge’s ruling on its bid to stop JetBlue Airways’ proposed $3.8 billion acquisition of Spirit Airlines.