Assessing the State of Affairs in FTC/DOJ Merger Enforcement
As President Biden makes antitrust a priority for his administration, the Federal Trade Commission and the Department of Justice’s Antitrust Division continue to challenge a number of high-profile transactions.
In this article, Jon Dubrow assesses the FTC’s and DOJ’s track record for merger challenges under the current administration and what it means for companies. Data show that the FTC and DOJ are continuing to win and block many deals using traditional horizontal competition theories. However, the agencies’ record in taking on more novel, less mainstream theories—such as vertical mergers—shows they have been far less successful, and the overall win rate for cases litigated to decision is about half of its recent levels.