Comments on the 2023 Draft Merger Guidelines

37 Pages Posted:

Date Written: September 12, 2023


These Comments address the Agencies' 2023 draft Merger Guidelines.

I have three main reactions to the Draft. First, there is plenty here to appreciate, including the decision to introduce or expand the treatment of a variety of important topics from platforms and potential competition to buy-side competition and labor markets, as well as the return of the structural presumption to pre-2010 levels. I also welcome the retention of much of the material from the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines. I would, however, have kept all that material in the main body. I understand the appeal of making the main text more accessible and less technical, but I think the guidelines’ success as an accurate and comprehensive technical guide for courts and businesses is very much more important than its success as a lively and brisk read for non-specialists. The latter function is best discharged by other documents.

Second, I think the inclusion in the final guidelines of some of the new material—including above all Guidelines 6, 7, and 8; the conflict-of-interest language in Guideline 10; and the “trend” exception to the assessment of efficiencies—would be a serious mistake, and I strongly recommend that the Agencies take it out. This material is inconsistent with applicable law, with broadly accepted analytical principles, and with Agency practice, and it is facially unconvincing. I do not think courts will be inclined to accept this material. Its inclusion will lead them to distrust and discount the entire document: including the content that is helpful and accurate.

Third, all substance aside and considering only structure, form, and language, I think it would be safer and better to include the valuable new material as an edit to the 2010 guidelines—with which courts are familiar and comfortable—rather than a total reboot of the document. I understand the appeal of a fresh approach, especially in the context of an effort to invigorate enforcement, but I do not think novelty is an advantage in litigation. Quite the contrary: every change in language creates an opportunity for dispute; every dispute creates uncertainty (which bogs down litigation and is rarely resolved by courts to antitrust plaintiffs’ liking); and ultimately ambiguities will be construed against the drafting Agencies. There are enough risks for plaintiffs in antitrust cases as it is! So I would add the incrementally good material while rolling as few new dice as possible. Possibly this perspective is too small-c conservative, but I am not sure that it is any more conservative than the courts in which this document will live or die.

Suggested Citation

Francis, Daniel, Comments on the 2023 Draft Merger Guidelines (September 12, 2023). Available at SSRN:

Daniel Francis (Contact Author)

NYU School of Law ( email )

40 Washington Square South
New York, NY 10011
United States

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