A tale of two approaches: Merger policy during the Biden administration

Executive Vice Presidents Allan Shampine and Nathan Wilson authored an article discussing merger policy during the Biden administration. The authors examine the activities of the Federal Trade Commission (FTC) and the Department of Justice (DOJ) in relation to mergers over the last four years, focusing on the “blocking and tackling” that continues to account for a significant amount of FTC and DOJ activities as well as novel initiatives that have distinguished both agencies during this administration.

This article was originally published by Concurrences here. The views expressed in this paper are the sole responsibility of the authors and cannot be attributed to Compass Lexecon or any other parties.

Introduction:

In this note, we discuss the different activities of the FTC and the DOJ in relation to mergers over the last four years, focusing both on the less remarked upon “blocking and tackling” that continues to account for a significant amount of their activities as well as the novel initiatives that have distinguished both agencies during this administration. We begin in section II with a discussion of the agencies’ actions challenging “standard” horizontal mergers, by which we mean those concerning competition based on existing products and services, as opposed to potential competition in the future. Then, in section III, we consider how the FTC and DOJ have acted with respect to cases involving potential competition. In section IV, we consider the agencies’ approach to challenging vertical and other non-horizontal mergers. Section V looks more broadly at how the Biden administration’s non-enforcement actions and choices reflect philosophical differences from prior administrations. We conclude in section VI.