A Bad Merger of Process and Substance: Changing the Merger Guidelines and Premerger Review Form

Abstract

On June 27, 2023, the Federal Trade Commission (FTC) announced proposed changes to Hart-Scott-Rodino Act (“HSR Act”) premerger notification form. Less than a month later, on July 19, the FTC and Department of Justice (DOJ) announced proposed changes to the agencies’ joint merger guidelines. These proceedings are closely related, both part of the Biden administration’s ongoing efforts to approach U.S. merger law more aggressively. But despite being part of the same substantive agenda, these two sets of changes are governed by distinct procedural rules and, ultimately, are likely to have very different effects on how merger law is enforced in the United States.

The substantive changes to both the merger guidelines and the premerger notification form relate to the Biden administration’s goals of more aggressive merger enforcement. The changes to each, however, are governed by different procedures. These procedural differences could very well lead to each having vastly different substantive impacts. While most attention is likely to fall upon the proposed merger guideline revisions, the proposed HSR premerger notification form revisions could have more substantial lasting impacts. This paper explains the background of the merger guidelines and HSR Act, discusses the procedure and substance of the proposed changes, and considers the likely impact that these proposes will have if implemented. Ultimately, it concludes that the proposed revisions to the merger guidelines are likely to be largely rejected by the courts so will have modest impacts, if any. The proposed changes to the premerger notification process, however, carry the force of law so are more likely to be accepted by the courts and, therefore, to have greater impacts on merger law and the economy.