DOJ, FTC release 2023 merger guidelines

The Justice Department and the Federal Trade Commission Dec. 18 jointly issued the 2023 merger guidelines describing how the agencies review mergers and acquisitions to determine compliance with federal antitrust laws.

The 2023 merger guidelines released today finalize the July draft merger guidelines that outlined principles the agencies may use when determining whether a merger is unlawfully anticompetitive, and clarifying the frameworks and tools they may use when analyzing a merger with respect to each guideline.
 
The AHA in September submitted detailed comments on the draft guidelines saying they ignored serious flaws in contemporary enforcement practice against hospital mergers; placed far too much weight on cases from the 1960s and 1970s, largely ignoring modern cases and economic scholarship that contradict their more aggressive proposed changes; proposed a structural presumption that is arbitrarily low and potentially fatal to beneficial transactions; and largely eschew the many benefits of horizontal and vertical integration in the health care industry.

Like the prior horizontal and vertical merger guidelines they replace, the 2023 merger guidelines are not themselves legally binding, but provide transparency into the agencies’ decision-making process.
  
AHA will review the final guidelines and share additional information with members. In addition, the association will monitor how the agencies implement the guidelines and how courts view them in future challenges to mergers.