On Jan. 10, 2020, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) (collectively, the agencies) released Draft Vertical Merger Guidelines (draft guidelines), marking the first update to the guidelines for vertical merger enforcement since the now-withdrawn 1984 Non-Horizontal Merger Guidelines (1984 guidelines ). The draft guidelines aim to increase “the transparency of the analytical process underlying the agencies’ enforcement decisions” for mergers between firms at different levels of the supply chain. U.S. Dept. of Just. and Fed. Trade Comm’n, Draft Vertical Merger Guidelines (Jan. 10, 2020).

According to FTC Chairman Joseph Simons, “the agencies’ vertical merger policy has evolved substantially since the issuance of the 1984 non-horizontal merger guidelines, and our guidelines should reflect the current enforcement approach.” DOJ Office of Public Affairs, DOJ and FTC Announce Draft Vertical Merger Guidelines for Public Comment (Jan. 10, 2020). Assistant Attorney General Makan Delrahim of the DOJ’s Antitrust Division echoed Chairman Simons, stating that “the revised draft guidelines are based on new economic understandings and the agencies’ experience over the past several decades and better reflect the agencies’ actual practice in evaluating proposed vertical mergers.” Id.

1984 Non-Horizontal Merger Guidelines