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Public Comments on US Merger Guidelines May Be Harbinger of Stronger Enforcement
Skadden – Citing evidence that many industries are becoming more concentrated and less competitive as merger filings multiply, the Department of Justice and Federal Trade Commission began a joint review of U.S. enforcement against illegal mergers in 2022. The agencies sought input on topics like scope of merger review, presumptions that certain transactions are anticompetitive, the use of market definition in analyzing competitive effects, threats to nascent competition, the impact of monopsony power, and the unique characteristics of digital markets. While public comments ran the gamut from pro-enforcement to pro-merger, some key voices, including a collection of state AGs, advocated for an elevated level of scrutiny.