DOJ and FTC Submit Draft Updated Merger Guidelines
Publications
September 2023
On July 19, 2023, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) released a draft update of the Merger Guidelines and invited public comments. If adopted, the Proposed Guidelines would represent a substantial change in the way the US antitrust agencies analyze the competitive effects of mergers. The agencies propose 13 separate guidelines. Below we identify just a few key proposed changes.
The Proposed Guidelines seek to integrate previously separate standards for horizontal and vertical mergers. Horizontal mergers are mergers between firms who both operate in the same antitrust market, while vertical mergers are those between firms at different levels in the supply chain. Historically, two different sets of guidelines and practices have governed the review of each type of merger, but the Proposed Guidelines integrate them into one set. This change reflects that in increasingly complex markets, it is often difficult to distinguish between purely horizontal or vertical theories of harm.
The Proposed Guidelines lower the market share threshold that would trigger a “structural presumption” that a horizontal merger will harm competition to pre-2010 levels. The Proposed Guidelines also include a structural presumption that vertical mergers will harm competition if the combined firm will have greater than a 50 percent share of the relevant upstream or downstream market. Additionally, the Proposed Guidelines identify as potentially harmful transactions that would entrench or extend a dominant position, defined as a market share of 30 percent or more. The Proposed Guidelines also call out transactions that further a trend toward concentration, meaning that mergers will likely receive additional scrutiny if they occur in markets that are consolidating.
These are just some of the potentially groundbreaking changes in the Proposed Guidelines. Even though they are not final, they provide insight into how the agencies are reviewing transactions.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
The Proposed Guidelines seek to integrate previously separate standards for horizontal and vertical mergers. Horizontal mergers are mergers between firms who both operate in the same antitrust market, while vertical mergers are those between firms at different levels in the supply chain. Historically, two different sets of guidelines and practices have governed the review of each type of merger, but the Proposed Guidelines integrate them into one set. This change reflects that in increasingly complex markets, it is often difficult to distinguish between purely horizontal or vertical theories of harm.
The Proposed Guidelines lower the market share threshold that would trigger a “structural presumption” that a horizontal merger will harm competition to pre-2010 levels. The Proposed Guidelines also include a structural presumption that vertical mergers will harm competition if the combined firm will have greater than a 50 percent share of the relevant upstream or downstream market. Additionally, the Proposed Guidelines identify as potentially harmful transactions that would entrench or extend a dominant position, defined as a market share of 30 percent or more. The Proposed Guidelines also call out transactions that further a trend toward concentration, meaning that mergers will likely receive additional scrutiny if they occur in markets that are consolidating.
These are just some of the potentially groundbreaking changes in the Proposed Guidelines. Even though they are not final, they provide insight into how the agencies are reviewing transactions.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Related Articles
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
Publications
September 2023
On July 19, 2023, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) released a draft update of the Merger Guidelines and invited public comments. If adopted, the Proposed Guidelines would represent a substantial change in the way the US antitrust agencies analyze the competitive effects of mergers. The agencies propose 13 separate guidelines. Below we identify just a few key proposed changes.
The Proposed Guidelines seek to integrate previously separate standards for horizontal and vertical mergers. Horizontal mergers are mergers between firms who both operate in the same antitrust market, while vertical mergers are those between firms at different levels in the supply chain. Historically, two different sets of guidelines and practices have governed the review of each type of merger, but the Proposed Guidelines integrate them into one set. This change reflects that in increasingly complex markets, it is often difficult to distinguish between purely horizontal or vertical theories of harm.
The Proposed Guidelines lower the market share threshold that would trigger a “structural presumption” that a horizontal merger will harm competition to pre-2010 levels. The Proposed Guidelines also include a structural presumption that vertical mergers will harm competition if the combined firm will have greater than a 50 percent share of the relevant upstream or downstream market. Additionally, the Proposed Guidelines identify as potentially harmful transactions that would entrench or extend a dominant position, defined as a market share of 30 percent or more. The Proposed Guidelines also call out transactions that further a trend toward concentration, meaning that mergers will likely receive additional scrutiny if they occur in markets that are consolidating.
These are just some of the potentially groundbreaking changes in the Proposed Guidelines. Even though they are not final, they provide insight into how the agencies are reviewing transactions.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
The Proposed Guidelines seek to integrate previously separate standards for horizontal and vertical mergers. Horizontal mergers are mergers between firms who both operate in the same antitrust market, while vertical mergers are those between firms at different levels in the supply chain. Historically, two different sets of guidelines and practices have governed the review of each type of merger, but the Proposed Guidelines integrate them into one set. This change reflects that in increasingly complex markets, it is often difficult to distinguish between purely horizontal or vertical theories of harm.
The Proposed Guidelines lower the market share threshold that would trigger a “structural presumption” that a horizontal merger will harm competition to pre-2010 levels. The Proposed Guidelines also include a structural presumption that vertical mergers will harm competition if the combined firm will have greater than a 50 percent share of the relevant upstream or downstream market. Additionally, the Proposed Guidelines identify as potentially harmful transactions that would entrench or extend a dominant position, defined as a market share of 30 percent or more. The Proposed Guidelines also call out transactions that further a trend toward concentration, meaning that mergers will likely receive additional scrutiny if they occur in markets that are consolidating.
These are just some of the potentially groundbreaking changes in the Proposed Guidelines. Even though they are not final, they provide insight into how the agencies are reviewing transactions.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Related Articles
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
News and Insights
Event
Amanda Shafer Berman to Speak on Energy and Administrative Law at WEN-DC Webinar
As the Supreme Court's new Term begins, Jenner & Block Partner Amanda Shafer Berman will join a Women's Energy Network of Washington, DC (WEN-DC) webinar on how the Court's decisions are shaping the energy sector.
October 14, 2026
Publications
Partner Amanda Shafer Berman Quoted in Bloomberg Law on Senate Permitting Overhaul Bill
Partner Amanda Shafer Berman was quoted in an October 5 Bloomberg Law article, "Permitting Deal Gives Projects Defense Against Litigation Delays," on the Senate's new permitting overhaul package and its expected impact on litigation over federal permitting reversals.
October 2026
Event
Partner John Storino to Speak at Sandpiper Partners' “AI and Outside Counsel Guidelines Roundtable”
On October 8, Partner John Storino will serve as a panelist at the “AI and Outside Counsel Guidelines Roundtable,” hosted by Sandpiper Partners in Chicago.
October 8, 2026
Event
Partner Meghan Greenfield to Speak on Supreme Court Climate Case at Edison Electric Institute's Fall Legal Conference
On Wednesday, October 7, Partner Meghan Greenfield will speak on a panel titled "Boulder County v. Suncor Energy: What the Supreme Court's Climate Case Means for the Energy Industry" at the Edison Electric Institute's Fall Legal Conference in Salt Lake City, Utah.
October 7, 2026
Publications
The Form Rules Everything: A Seventh Circuit Ruling on ERISA's Substantial Compliance Doctrine
Partner Joseph Torres and Special Counsel Jennifer Beach authored an article for Employee Relations Law Journal examining the Seventh Circuit's decision in Packaging Corp. of America Thrift Plan for Hourly Employees v. Langdon, a ruling that addresses both the standard of review in ERISA interpleader actions and the continued viability of the substantial compliance doctrine for changing plan beneficiaries.
October 5, 2026