Interested in training for your team? Click here to learn more

M&A Deals Under New Merger Guidelines: Enhanced Antitrust Scrutiny, Lower Market Concentration Thresholds

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, March 7, 2024

Recorded event now available

or call 1-800-926-7926

This CLE webinar will discuss the 2023 Merger Guidelines issued jointly by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC). The panel will highlight the need for companies to plan carefully for M&A activity and to anticipate an increased likelihood of additional regulatory antitrust scrutiny and litigation for certain transactions.


On Dec. 18, 2023, the DOJ and FTC issued new Merger Guidelines that explain how both agencies will analyze whether potential transactions may violate antitrust laws. The Guidelines lower the concentration thresholds at which the agencies deem mergers to be presumptively unlawful and take a more expansive view of potential competitive harms, which likely will lead to more frequent and thorough investigations of certain transactions and added time for regulatory review before those transactions can close.

The agencies set forth 11 points or "guidelines" that will be used in determining whether they consider a transaction potentially anticompetitive. Guidelines 1-6 describe distinct frameworks the agencies use to identify whether a merger raises prima facie concerns. Guidelines 7-11 describe factors the agencies will consider in applying the frameworks set out in Guidelines 1-6.

Although not legally binding, these new Guidelines are a critical component in the merger enforcement process. Antitrust practitioners refer to them when advising clients and courts historically have cited agency guidelines in their opinions in merger enforcement cases. Regardless of whether courts follow the new Guidelines, however, prolonged agency investigations and/or opposition can sometimes be enough to kill a deal before it ever reaches litigation.

Listen as our authoritative panel of antitrust experts discusses the new Merger Guidelines and how these changes reflect the current FTC and DOJ enforcement priorities already in place. The panel will also provide tips on how to advise clients to anticipate an increased likelihood of additional regulatory scrutiny for future M&A activity.



  1. Role of Merger Guidelines
    1. Tool/framework for agencies and public
    2. Potential guidance to courts
  2. Comparison of new Guidelines with draft Guidelines that were released in July 2023
  3. Overview of the new Merger Guidelines
    1. The 11 separate guidelines agencies will apply to determine the competitive effects of a merger
    2. Evidence considered/standards
    3. Approach to market definition
    4. Defenses (e.g., efficiencies, failing firm defense)
  4. How the new Guidelines compare to recent case law
  5. Interplay between the new Guidelines and proposed revisions to the HSR filing requirements
  6. What potential antitrust concerns and solutions parties should consider early in the merger process
  7. Key takeaways and practical considerations
    1. New Guidelines and their impact on courts' views and decisions
    2. Future of the new Guidelines if a new administration takes office in 2025


The panel will review these and other key issues:

  • The rationale behind the new Merger Guidelines and comparison between the final version and the earlier draft
  • The 11 separate guidelines that will be used in determining whether a transaction is potentially anticompetitive
  • How the new Merger Guidelines reflect the government's enforcement priorities
  • How practitioners should advise clients considering M&A activity in light of these new Guidelines


Hauser, Henry
Henry J. Hauser

Perkins Coie

Mr. Hauser has significant experience with antitrust litigation, investigations, and advocacy. He started his career as...  |  Read More

Knight, Michael H.
Michael H. Knight

Jones Day

With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight...  |  Read More

Williams, Christopher A.
Christopher A. Williams

Perkins Coie

Mr. Williams focuses his practice on antitrust issues related to commercial transactions, including mergers and...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video