Assessing The New DOJ, FTC Vertical Merger Guidelines

By Koren Wong-Ervin and John Harkrider (July 6, 2020, 7:49 PM EDT) -- On June 30, the U.S. Department of Justice and Federal Trade Commission released their vertical merger guidelines.[1] We expect[2] a commentary on the guidelines to follow in the next few weeks or so. Overall, the guidelines recognize that "vertical mergers often benefit consumers"[3] and set forth nonexhaustive ways in which nonhorizontal mergers may substantially lessen competition.

The three primary theories described are foreclosure and raising rivals' costs, access to competitively sensitive information, and facilitating collusion. The guidelines also cover harms from mergers that increase the cost of entry into a relevant market; mergers that disadvantage rivals through the acquisition of a...

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