Biden DOJ and FTC release new merger guidelines most aggressive anti-consolidation since 1968

The Biden Justice Department and FTC jointly release updated Merger Guidelines, the first comprehensive overhaul since 2010. The guidelines abandon the consumer welfare standard that had governed antitrust enforcement for 40 years in favor of a broader structural approach that also considers effects on workers, suppliers, and competitive markets. The new guidelines lower the concentration thresholds that trigger scrutiny, expand scrutiny to vertical and conglomerate mergers, and introduce novel theories of harm including harm to workers and "ecosystem" competition. FTC Chair Lina Khan calls them "a new era of antitrust enforcement." Courts cite the guidelines favorably in over a dozen antitrust cases within a year.