Agencies spotlight vertical merger analytical techniques, enforcement policies

The Federal Trade Commission and the Department of Justice have issued new Vertical Merger Guidelines that outline how the federal antitrust authorities evaluate the likely competitive impact of vertical mergers and whether such actions comply with U.S. law. The document represents the first time the agencies have issued joint guidelines on vertical mergers, and is the first major revision to vertical merger guidance since the 1984 Non-Horizontal Merger Guidelines, which were withdrawn earlier this year.

“These new Vertical Merger Guidelines are an important step forward in maintaining vigorous antitrust enforcement, and reaffirm our commitment to challenge vertical mergers that are anticompetitive and would harm American consumers,” says FTC Chairman Joe Simons. “The new Guidelines reflect our current enforcement approach and, through increased transparency, will help businesses and practitioners understand how we evaluate vertical transactions. The[y] also reflect our strong collaboration with the Department of Justice, and the substantial input received from the public.”

“Vertical Merger Guidelines provide transparency in the important area of analysis,” adds Assistant Attorney General Makan Delrahim, who heads the Justice Antitrust Division. “They explain our investigative practices as we apply them today and have applied them in recent years. The Guidelines will give greater predictability and clarity to the business community, the bar, and enforcers. This has been a successful process because of our robust public engagement and excellent collaborative relationship with the FTC.”

A primary goal of the new Vertical Merger Guidelines is to help the agencies identify and challenge competitively harmful vertical mergers. To that end, the document details the techniques and main types of evidence that the agencies typically use to predict whether vertical mergers may substantially lessen competition. The Guidelines will help businesses, antitrust practitioners, and other interested persons by increasing transparency into the agencies’ principal analytical techniques, practices, and enforcement policies for evaluating vertical transactions.