FROM GUIDELINES TO GRIDLOCK: THE CHALLENGES FACING DOJ AND FTC’S NEW MERGER GUIDELINES AND THE PATH FORWARD

A Note by James Zhang

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The year of 2023 has seen the lowest level of M&A activity in over a decade, since the period after the 2008 global financial crisis.[1] Inflation, rising interest rates and fear of a recession halved Global M&A deal values to $2.5 trillion USD from their peak of more than five trillion dollars in 2021.[2] In the midst of such difficult situations, increasing regulation scrutiny has cast yet another shadow over the flickering future of the M&A market.

On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines.[3] This is the final version after gathering public feedback from the draft version released in July 2023.[4] This guideline marks another step forward of the Biden administration’s aggressive and interventionalist antitrust policy.[5] It not only lowers the threshold to presume a merger as anticompetitive, but also raises several novel legal theories to regulate M&A transactions.[6]


[1] See Brian Levy, 2024 Outlook Global M&A Industry Trends, PwC (Jan. 23, 2024), https://www.pwc.com/gx/en/services/deals/trends.html.

[2] See id; see also Michael G. O’Bryan et al., M&A in 2023 and Trends for 2024, Morrison & Foerster LLP (Jan. 4, 2024), https://www.mofo.com/resources/insights/240104-m-a-in-2023-and-trends-for-2024. 

[3] See Steven C. Sunshine et al., DOJ and FTC Release Final 2023 Merger Guidelines Formalizing Aggressive Merger Enforcement Playbook, Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates (Dec. 21, 2023), https://www.skadden.com/insights/publications/2023/12/doj-and-ftc-release-final-2023-merger-guidelines.

[4] See id.

[5] Id.

[6] See Antitrust Div., U.S. Dep’t of Just. & Fed. Trade Comm’n, 2023 Merger Guidelines (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2023_merger_guidelines_final_12.18.2023.pdf.