Investing.com — Federal Trade Commission (FTC) Chairman Andrew N. Ferguson announced that the FTC and the Department of Justice’s (DOJ) joint 2023 Merger Guidelines are now in effect. These guidelines will be the framework for the FTC’s merger-review analysis.
Chairman Ferguson emphasized the importance of stability for enforcement agencies, stating that the constant reshaping and rescinding of guidelines is both costly and time-consuming. He suggested that this process should be undertaken sparingly, as the agencies have limited resources and frequent changes can undermine their credibility.
The FTC Chairman also mentioned that the Premerger Notification Office (PNO) received an unusually high number of filings right before the updated HSR Rule came into effect last week. Typically, the PNO sees between 35 and 50 transactions per week. However, under the old notification rules, the PNO received 394 filings accounting for around 200 transactions in the last week alone.
The 2023 Merger Guidelines serve as a restatement of prior iterations of the guidelines and reflect what can be found in case law. While Ferguson acknowledged that no guidelines are perfect, he stated that if experience shows that revisions are needed, the agencies can consider revisions as they have done in the past. Until any such revisions are adopted, the FTC will use the 2023 Merger Guidelines to carry out its important merger-enforcement work.
Historically, stability across administrations of both parties has been a common theme. The 1992 Guidelines, the first ever joint Horizontal Merger Guidelines, remained in effect until 1997 during President Clinton’s second administration. Those 1997 revisions stayed in effect until President Obama’s administration issued revisions in 2010. The 2010 revisions remained in effect through President Trump’s first administration until 2023.
Maintaining the 2023 Guidelines, according to Ferguson, is a clear lesson from history that stability should be prized and wholesale rescission should be disfavored. He cautioned that if merger guidelines change with every new administration, they would become largely worthless to businesses and the courts.
This article was generated with the support of AI and reviewed by an editor. For more information see our T&C.
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