September 14, 2022

Assistant Attorney General Plans Stronger Merger Enforcement Guidelines

Assistant Attorney General Jonathan Kanter reported that the DOJ Antitrust Division is "engaging the entire merger staff of both the DOJ and FTC" in anticipation of issuing new draft merger guidelines.

In an address before the Georgetown Antitrust Law Symposium, Mr. Kanter said that antitrust laws are at an "inflection point" and that in many sectors "just one or two powerful companies dominate[,]" and in others, "rampant oligopoly behavior deprives consumers and workers of the benefits of robust competition." He stated that there is a "disconnect that has arisen over the years between merger law, merger policy, and the way competition plays out in the marketplace." He warned that a lack of competition will lead to "higher consumer prices, lower wages, and fewer new businesses being created."

Mr. Kanter said that the revised guidelines are intended to (i) better reflect laws and interpretations relating to current antitrust policy, which have "fallen out of sync with the values reflected in the Clayton Act and the standards established by the courts for its application," and (ii) address merger enforcement which "has become disconnected from the competitive realities of our economy." He stated, "[w]e focus too much on a small handful of models for predicting price effects, and lose sight of the competition actually at stake. We obsess in all cases about market definition, when in many situations direct evidence can help us assess the potential for harm. Competition varies, and our framework must adapt accordingly."

Mr. Kanter said that the DOJ received a record number of comments after requesting public feedback on the current guidelines, which "overwhelmingly call for stronger enforcement." He also highlighted that the Division is on track to "litigate more merger trials this year than in any fiscal year on record."

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