The past year has seen a wholesale turnover in leadership at the two federal antitrust enforcement agencies, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC). Makan Delrahim was confirmed as the new assistant attorney general for the DOJ in September 2017; Joe Simons was sworn in as the new FTC chairman in May of this year; two new FTC commissioners have been appointed and a third is on the way; and the new leaders of both agencies have made new senior staff appointments. With these changes in leadership have come a shift in emphasis and a renewed focus on the role of the antitrust agencies in merger enforcement, which is being reflected in the agencies’ approach to transactions under review as well as existing consent decrees.
Two related themes that have emerged over the past year are an increased hostility toward remedies that result in ongoing supervision or monitoring by the agencies (known as “behavioral” remedies) and a sharper focus on vertical merger enforcement. The two are closely related in that the typical “fix” for competition concerns in vertical transactions is often a behavioral remedy—the imposition of requirements that the merged firm act in a certain way after consummation of the transaction, such as an obligation to continue to give access to competitors. In the absence of such a resolution, the agencies are faced with a decision to permit the transaction to proceed, look for a structural solution or challenge the transaction in its entirety.
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