Through their new Merger Guidelines of adopted in December 2023 (MG), the Department of Justice (DOJ) and the Federal Trade Commission (FTC) (jointly, the Agencies) aim to solidify the New-Brandeisian structuralist approach to markets to embrace the “big is bad” mantra. The “adventuresome” 2023 Merger Guidelines rest on the idealist proposition that atomized markets reduce economic inequality, increase consumer protection, and protect economic democracy.
With the 2023 MG, the agencies openly depart principles that have characterized modern antitrust enforcement. For, the 2023 MG treat factual indicators as legal presumptions: market shares, oligopolistic market structure, industry trends toward consolidation are no longer perceived as factual elements that form the basis for a full-fledged merger analysis but rather, these facts become conclusory elements that warrant structural presumptions for the prohibition of mergers.
In other words, the 2023 Merger Guidelines are shortcuts that cast a wide net consisting of prohibiting mergers based on legal presumptions rather than a case-by-case merger analysis. The structuralist return that justifies presumptive prohibition of mergers share similarities with a precautionary approach to mergers where ex-ante prohibitions sans fully-fledged merger analysis enable agencies to intervene quickly and timely in blocking mergers.
