In a bid to extend a crackdown on illegal mergers and acquisitions, the two main antitrust agencies in the US finalized a sweeping overhaul of rules the government uses to determine whether deals violate competition law.
The new guidelines from the Department of Justice (DOJ) and Federal Trade Commission (FTC) are designed to impede companies seeking to dominate their industries by buying up rivals.
One change from the original guidelines issued in 2010 is that the 2023 version expands the definition of a “highly concentrated market”. Mergers in highly concentrated markets are more likely to face opposition from government enforcers, so this definition change is meaningful.
But the guidelines also lay the groundwork for tougher scrutiny of planned mergers by big tech companies such as Amazon and Alphabet, as the guidelines described, without naming them specifically, deals such as Amazon.com’s 2018 acquisition of video doorbell maker Ring, saying the antitrust agencies should scrutinize such dealmaking.
“For too long, unchecked consolidation has meant big corporations getting bigger, giving them the power to raise prices for Americans and provide consumers with fewer options.”
Lael Brainard, National Economic Adviser
“A platform operator that is also a platform participant may have a conflict of interest whereby it has an incentive to give its own products and services an advantage over other participants competing on the platform,” the guidelines say.
The guidelines generally match a proposal that the agencies issued in July, though the final version does not include a proposed guideline related to so-called vertical deals – those between companies that aren’t direct competitors but operate in the same supply chain.
Competitive markets sought
The department said the new merger guidelines are aimed at encouraging fair, open and competitive markets.
“These finalized guidelines provide transparency into how the Justice Department is protecting the American people from the ways in which unlawful, anticompetitive practices manifest themselves in our modern economy,” Attorney General Merrick Garland said in a statement.
“For too long, unchecked consolidation has meant big corporations getting bigger, giving them the power to raise prices for Americans and provide consumers with fewer options,” National Economic Adviser Lael Brainard added. The new merger guidelines are “an important step to lower costs for consumers, ensure a level playing field for small businesses, and ensure antitrust enforcement is fit for purpose in today’s economy.”
Recent antitrust challenges
President Joe Biden called for these guidelines to be updated in a mid-2021 executive order, and the FTC and its chair Lina Kahn have been the object of many companies’ and lawmakers’ ire for filing some aggressive antitrust challenges in court.
Those courtroom balances have had mixed results.
A big win for the FTC was just announced a few days ago. Gene-sequencing company Illumina said on Sunday it will divest cancer diagnostic test maker Grail after the companies battled both US and European antitrust regulators for more than two years and faced opposition from activist investor Carl Icahn. The Illumina litigation was the FTC’s first successful court action to block a vertical deal.
On the other side of the coin, though, the FTC seems to keep losing in its attempt to block the $69 billion purchase of videogame company Activision Blizzard by Microsoft, which makes Xbox gaming consoles. And in January, the agency lost a lawsuit against Facebook parent Meta over its acquisition of virtual reality company Within Unlimited.
