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FTC, DOJ To Review If Merger Rules ‘Overly Permissive’

Top U.S. trade regulators released a joint statement committing to an examination of whether the Federal Trade Commission (FTC) and the Department of Justice (DOJ) should be tougher on proposed mergers following President Joe Biden’s issuance of an executive order calling for greater scrutiny of corporate deals and other regulatory changes.

“We must ensure that the merger guidelines reflect current economic realities and empirical learning and that they guide enforcers to review mergers with the skepticism the law demands,” Commission Chair Lina Khan and Acting Assistant Attorney General of the DOJ Antitrust Division Richard A. Powers said in the joint statement. “The current guidelines deserve a hard look to determine whether they are overly permissive. We plan soon to jointly launch a review of our merger guidelines with the goal of updating them to reflect a rigorous analytical approach consistent with applicable law.”

Biden’s Friday (July 9) executive order called for a number of changes aimed at what the president said was a goal of increasing competition in various sectors of the U.S. economy.

The joint statement from the FTC and DOJ officials seems to relate to a portion of the executive order that stated, in part: “It is also the policy of my administration to enforce the antitrust laws to meet the challenges posed by new industries and technologies, including the rise of the dominant internet platforms, especially as they stem from serial mergers, the acquisition of nascent competitors, the aggregation of data, unfair competition in attention markets, the surveillance of users, and the presence of network effects.”

During the first half of 2021, U.S. businesses merged at a value not seen for 40 years and a pace unseen for the last few years. The number of U.S. M&A deals in March, April and May broke prior records. Factors cited by experts include low interest rates and rising stock prices.

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