Making very clear that the Biden Administration will continue to enforce the antitrust laws aggressively, its Dept. of Justice and Federal Trade Commission recently issued their Revised Merger Guidelines. A few points illustrate the Guidelines’ new, more aggressive approach:
- To be competitive, a market must have at least 10 competitors. The old Guidelines required only 7. This makes it easier for the antitrust enforcers to oppose mergers.
- The new Guidelines are much more inclined to believe that a merger, rather than allow the merging companies to operate more efficiently, will instead simply allow the merged firm to raise prices. Again, this makes it easier for the enforcers to oppose mergers.
- Seeking to protect innovation efforts, the Guidelines at least try to close the loophole of time. One firm will often buy another while that other firm is still innovating, and thus not yet selling a product. The new Guidelines make it much more difficult for firms to do this. And again, this makes it easier for the enforcers to oppose mergers.
Regarding how Americans review mergers click here (link to How do the Antitrust Enforcers Regulate Horizontal Mergers in the United States?)
Regarding how Americans, and Europeans, protect competition to innovate click here (How do American and European Competition Authorities Protect Competition to Innovate?)
In addition, Lawrence B. Landman, the Head of LawFlex Antitrust, recently wrote a short, 4-page, article showing that in their new Revised Merger Guidelines the American authorities now acknowledge that when they protect competition to innovate they use the Future Markets Model, which he developed. Click here.
Any company can contact the American, or European, authorities asking them to challenge any merger. If you are involved in a merger, or you think a merger will harm your business, contact LawFlex Antitrust.