CRA Insights

New concentration thresholds in the draft 2023 US Merger Guidelines

July 21, 2023

In this paper, we discuss how the proposed draft 2023 US Merger Guidelines have redrawn the thresholds for determining whether a merger should be presumed anticompetitive based on structural measures of market concentration and market shares. The draft 2023 US Merger Guidelines not only lower the thresholds for determining a merger to be presumptively anticompetitive, but also notably omit language from the 2010 Guidelines (and similar language from the 1997 Guidelines) that explicitly recognized a threshold below which a merger might be presumed not to be anticompetitive (a de facto “safe harbor”).

Furthermore, the draft 2023 US Merger Guidelines have reintroduced a presumption that a merger is anticompetitive if the market share of the combined firm exceeds a threshold, where previously such a share-based approach had been dropped from the Merger Guidelines in 1997.

Read the Insights.