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。
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© 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.
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