May 26, 2022

Volume XII, Number 146

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FTC and DOJ Seek Public Comments on Merger Guidelines

The Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division announced last week that they are soliciting public comments on ways to “modernize federal merger guidelines” to assist the agencies in identifying anticompetitive transactions. The Request for Information on Merger Enforcement details 15 areas of particular interest to the agencies: 

  • Purpose, Harms, and Scope

  • Types and Sources of Evidence

  • Coordinated Effects

  • Unilateral Effects

  • Presumptions

  • Market Definition

  • Potential and Nascent Competition

  • Remedies

  • Monopsony Power and Labor Markets

  • Innovation and IP

  • Digital Markets

  • Special Characteristics of Markets

  • Barriers to Firm Entry and Growth

  • Efficiencies

  • Failing and Flailing Firms

Each of the 15 areas includes specific questions on which the agencies are seeking input. Of particular note are questions such as whether the “traditional distinctions” between horizontal and vertical mergers should be reevaluated, whether the guidelines suggest “limiting enforcement to a subset of the mergers that are illegal under controlling case law,” and whether it is “necessary to precisely define the market in every case.”

The comment period is open until March 21, 2022.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 27
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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of...

202-861-4182
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