What a difference a year makes: FTC Withdraws Vertical Merger Guidelines

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In September 2021, the five-member Federal Trade Commission voted 3-2 along party lines to withdraw its support for the Vertical Merger Guidelines (“Guidelines”) and related FTC commentary on vertical merger enforcement. At the same time—indeed, only hours later on the same day—the acting head of the Antitrust Division of the Department of Justice issued a statement indicating that the Guidelines “remain in place” at the DOJ while the agency conducts a “careful review” of its process for making enforcement decisions. This article describes the creation of the 2020 Vertical Merger Guidelines, the FTC’s decision to withdraw the Guidelines, and what merging parties should expect going forward.