The new guidelines are meant to give businesses and courts a sense of how the two agencies determine if a deal is unlawful
The agencies may broaden the types of deals they review, potentially looking at a series of deals rather than a single merger. The FTC has already started down that path,Facebook parent Meta in 2020 based on a number of acquisitions of small rivals like Instagram and WhatsApp as a strategy to maintain its alleged monopoly power.
A senior FTC official told reporters in a briefing on Tuesday that the guidelines should give judges the clarity they've requested in the past when it comes to merger law, a matter of particular importance to judges who rarely encounter antitrust cases.in 2021 that it would work on new guidelines with the DOJ, after voting to withdraw the most recent iteration.
On the call with reporters, the FTC official and a senior DOJ official said the guidelines reflect their updated approach to enforcing merger law, emphasizing the law itself has not changed. They said the agencies assessed the more than 5,000 comments they received when embarking on the project. The public has until Sept. 18 to submit comment on the draft guidelines. The agencies will then review those comments as they consider revisions ahead of final publication.
Once they're finalized, the longevity of the new guidelines could depend on political power dynamics after the next presidential election in 2024. After all, the FTC voted to withdraw the last version of the guidelines just over a year after they were officially released.
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