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New Proposed Vertical and Horizontal Merger Guidelines: Increased Antitrust Scrutiny for M&A Activity

Navigating Proposed New Guidelines and Lower Market Concentration Thresholds to Close the Deal

Recording of a 90-minute 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, October 19, 2023

Recorded event now available

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This CLE webinar will discuss the U.S. Department of Justice's (DOJ) and the Federal Trade Commission's (FTC) proposed changes to the Horizontal Merger Guidelines and Vertical Merger Guidelines for M&A activity. The panel will highlight the need for companies to plan carefully for M&A activity and anticipate an increased likelihood of additional regulatory antitrust scrutiny and litigation.


On July 19, 2023, the DOJ and the FTC released draft updates to their Merger Guidelines for horizontal and vertical mergers that reflect a considerable shift in how the DOJ and FTC review mergers. The Merger Guidelines outline the framework the agencies apply when evaluating the competitive impact of mergers and acquisitions. Although not legally binding, these guidelines are a critical component in the merger enforcement process. Antitrust practitioners refer to them when advising clients and courts regularly cite them in their opinions in merger enforcement cases.

The sweeping changes proposed in the updated Guidelines represent shifts in philosophy in how the DOJ and FTC analyze and review mergers. If adopted, merger review using the Guidelines would assess more mergers as presumptively unlawful under lower concentration thresholds, lead to more frequent thorough investigations of transactions, and add time for regulatory review before those transactions can close.

The agencies set forth 13 points or "guidelines" that will be used in determining whether they consider a transaction potentially anticompetitive. The first eight guidelines outline ways by which a transaction may lessen competition; for example, if the transaction significantly increases concentration in a market that is already highly concentrated. The next four clarify how the agencies will approach certain types of transactions or issues in a transaction. The final guideline is a catchall clarifying that the first 12 guidelines do not lay out every way in which a transaction may substantially lessen competition.

Listen as our authoritative panel of antitrust experts discusses the draft updates to the 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 now 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. Previously have been considered as persuasive to courts, but are not law
  2. Comparison of current Guidelines with new draft Guidelines
  3. Overview of the new draft Merger Guidelines
    1. The 13 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 current Guidelines compare to recent case law (Meta/Within, United/Change, and Microsoft/Activision)
  5. Key takeaways and practical considerations
    1. Changing 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:

  • What is the reasoning behind the proposed changes to the Merger Guidelines?
  • What are the 13 separate guidelines that will be used in determining whether a transaction is potentially anticompetitive?
  • How do the proposed changes to the Merger Guidelines reflect the government's enforcement priorities?
  • How should practitioners advise clients considering future M&A activity in light of these proposed new Guidelines?


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

Smith, Wrede
Wrede H. Smith


Mr. Smith is a member of the firm’s Antitrust & Trade Regulation practice, focusing on representing clients...  |  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

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