In a notable decision by the Trump administration’s antitrust enforcers, the 2023 merger review rules introduced during President Biden’s term will remain in place, contrary to the expectations of some critics who had anticipated a rollback. Both the Department of Justice (DOJ) and the Federal Trade Commission (FTC), the primary agencies responsible for merger evaluations from an antitrust perspective, have reaffirmed their commitment to these guidelines. In memos distributed to staff, they highlighted their adherence to these rules, emphasizing their alignment with the “iterative, bipartisan approach” of previous guidelines.
Omeed Assefi, acting assistant attorney general for antitrust at the DOJ, described the guidelines in a memo as consistent, even if imperfect, and stated the intention to preserve them. Andrew Ferguson, Chair of the FTC, echoed this stance in a separate document, underscoring the necessity of maintaining stable standards to aid the business and legal communities. “If merger guidelines change with every new administration, they risk becoming obsolete for businesses and the judiciary,” Ferguson noted.
- The 2023 guidelines replaced prior regulations, including 2010 guidance concerning mergers between direct competitors and 2020 rules addressing vertical deals, which affect companies within the same supply chain but not in direct competition. Although these updates were met with disapproval from groups such as the US Chamber of Commerce, fearing a potential decline in merger activities, they have found some favor in the courts.
The efficacy of these regulations has been evidenced through the FTC’s successful challenges in notable cases, such as the merger attempt between Kroger Co. and Albertsons Cos. In addition, Gail Slater, nominated by Trump for the head of the antitrust division within the DOJ, expressed support for the continuation of the 2023 guidelines. Slater underscored the importance of guidelines that reflect statutory texts and binding court rulings, as well as the necessity for a careful and transparent revision process when needed.
Joel Thayer, President of the Digital Progress Institute, dismissed much of the criticism of the 2023 merger guidelines as exaggerated. Reflecting on their textualist nature, he argued they reaffirm what the current law suggests and that the Trump administration’s adherence to enforcing the law demonstrates their commitment to robust law enforcement standards.
For the full article, refer to the original piece on Bloomberg.