Since their release, the federal antitrust agencies’ 2023 Merger Guidelines (2023 Guidelines) have faced significant criticism from many.1 There was speculation that the Federal Trade Commission (FTC) and Department of Justice (DOJ) under the new Trump Administration would revoke or significantly revise the 2023 Guidelines. On February 18, however, FTC and DOJ Antitrust Division leadership confirmed that the joint FTC/DOJ 2023 Merger Guidelines will remain in effect as the agencies’ framework for the merger review process.2 The timing of these announcements was notable. They came just as the FTC was receiving a rush of Hart-Scott-Rodino (HSR) notifications, many of which seemingly were expedited to avoid the new HSR form that went into effect on February 10, 2025. The new HSR form is another major change during the Biden Administration that apparently will survive the turnover at the agencies.3 For more information on the new HSR form, see our prior alert here.
The 2023 Merger Guidelines
The antitrust agencies’ 2023 Guidelines were released in December 2023, after a nearly two-year process that involved significant public input. The 2023 Guidelines marked a significant shift from the preceding 2010 Horizontal Merger Guidelines and 2020 Vertical Merger Guidelines. On publication, the FTC said that the 2023 Guidelines “reflect modern market realities, advances in economics and law, and the lived experiences of a diverse array of market participants.”4 The 2023 Guidelines take a more interventionist approach to horizontal and vertical mergers and provide new frameworks for analyzing less common theories of competitive harm, such as elimination of potential future competition, entrenchment of dominant positions, consolidation through “serial” acquisitions, and reduction of labor competition. For more information on the 2023 Guidelines, see our prior alert here.
FTC and DOJ Announcements
On February 18, 2025, FTC Chair Andrew Ferguson and DOJ Acting Assistant Attorney General (AAG) Omeed Assefi issued memoranda to FTC and DOJ staff, respectively, instructing the staff to continue applying the 2023 Guidelines.5 Ferguson’s memorandum underscored the need for stability, predictability and transparency in the merger review process, suggesting that retaining the 2023 Guidelines is important to those ends. He also expressed concern that the agencies could take a credibility hit if they change the guidelines “with every new administration” in a way that is “obviously partisan.”6 He pointed to the fact that there have been relatively few revisions to the merger guidelines since the joint guidelines were introduced in 1992,7 despite changes in administration, and said that future revisions should be undertaken “sparingly.”8 President Trump’s nominee for AAG of the Antitrust Division, Abigail Slater, expressed similar sentiments in her written and oral testimony for her confirmation hearing on February 17, 2025.9
That the FTC and DOJ, now under Republican leadership, have decided to keep the 2023 Guidelines (at least for now) may reflect that aggressive antitrust enforcement has recently found bipartisan support. For instance, Vice President JD Vance commended the interventionist agenda of former FTC Chair and Biden appointee Lina Khan.10
What’s Next
Chair Ferguson has suggested that, in practice, the 2023 Guidelines were not an enormous departure from previous guidelines, observing that they “[b]y and large … are a restatement of prior iterations of the guidelines, and a reflection of what can be found in the case law.”11 Nevertheless, we will want to stay tuned. In their memoranda, Chair Ferguson and Acting AAG Assefi both acknowledged that the 2023 Guidelines are not “perfect” and that it may be appropriate to consider revisions down the road following an “iterative and transparent” process.12 Commissioner Melissa Holyoak has also said that she would “strongly consider” revising the guidelines.13 So we may see an effort to further review or revise the 2023 Guidelines in the foreseeable future.
Finally, guidelines are one thing, but real-world enforcement is another. It remains to be seen how the FTC and DOJ will undertake merger enforcement in practice, and how their enforcement program differs from that of the agencies under Democratic leadership. In what might prove an early indication, in its first merger challenge during the second Trump Administration, DOJ relied on the market concentration thresholds set forth in the 2023 Guidelines.14 But every agency leadership puts its own mark on merger enforcement, so we expect that over time, patterns of divergence from the prior leadership will emerge. For our predictions on M&A enforcement under the Trump Administration, see our prior alert here.
