Federal Trade Commission Chairman Andrew Ferguson announced to FTC staff on February 18 that the FTC would retain the 2023 Merger Guidelines as the framework for reviewing mergers and acquisitions. Citing the need for stability between presidential administrations, Chairman Ferguson rejected calls to set aside the 2023 Merger Guidelines to draft new ones or reinstate the 2010 Horizontal Merger Guidelines that had been in place prior to 2023. In his own memo to the Department of Justice’s Antitrust Division Staff, Acting Assistant Attorney General Omeed Assefi echoed Chairman Ferguson’s endorsement, signaling that the Division would also continue to apply the 2023 Guidelines in the name of enforcement continuity.
The decision to endorse the 2023 Guidelines is somewhat surprising given the circumstances of their adoption (a 3-0 vote from an all-Democrat Commission and adoption by the Biden DOJ) and the scrutiny they’ve undergone since adoption. Many commenters have criticized, among other things, their de-emphasis of modern economic theory in favor of reliance on older case law and their adoption of very low thresholds to apply presumptions of anti‑competitiveness. Endorsement of the 2023 Guidelines by the current administration has been touted as a win by antitrust hawks. Chairman Ferguson and Acting AAG Assefi did leave open the door to future modification, with Ferguson stating that “if experience teaches that revisions are appropriate, then the agencies can consider revisions as they have done in the past.” For now, however, parties planning mergers and acquisitions should continue to rely on the 2023 Guidelines when predicting enforcement decisions.