U.S. Antitrust Agencies Announce Retention of 2023 Merger Guidelines

FTC Chairman Andrew Ferguson and Acting Assistant Attorney General Omeed Assefi separately announced on February 18, 2025 that each agency would continue to use the FTC and DOJ’s joint 2023 Merger Guidelines as the framework for reviewing proposed mergers.

The FTC’s decision was announced in a memo sent to FTC staff by Chairman Ferguson, who took over for Lina Khan as chair of the FTC during the first week of the new Trump administration. The memo stated that FTC staff will continue to use the 2023 Merger Guidelines in reviewing proposed transaction filings.

Chairman Ferguson’s memo explained that the “clear lesson of history is that we should prize stability and disfavor wholesale rescission … No business can plan for the future on the basis of guidelines they know are one election away from rescission, and no court will rely on guidance that is so obviously partisan.”

The memo stated that “[b]y and large, the 2023 Merger Guidelines are a restatement of prior iterations of the guidelines, and a reflection of what can be found in case law.” The memo clarified that “[t]hat is not say that the 2023 Merger Guidelines are perfect,” but that it would continue to be used until “experience teaches that revisions are appropriate … and any such revisions are adopted.”

The DOJ’s decision was announced in a memo to DOJ Antitrust Division Staff from Acting Assistant Attorney General Assefi. Acting AAG Assefi’s memo quoted responses that Assistant Attorney General nominee Gail Slater submitted as part of her confirmation process that “make clear that – should [Slater] be confirmed – the Antitrust Division plans to continue using the 2023 Merger Guidelines.”

The quoted responses of Ms. Slater in the memo stated her agreement with FTC Chairman Ferguson that “the Merger Guidelines work best when there is stability across administration” and that “much of what is in the current merger guidelines simply restates longstanding law.”

Acting AAG Assefi concluded the memo by recognizing that the “2023 Merger Guidelines are not necessarily perfect” and that “there may be opportunities for revisions in the future.” However, the memo reiterated that “any potential revisions … will be completed with the same transparency and careful thought” that has been used for past merger guidelines. Until such revisions are made, “the Antitrust Division will continue use of the 2023 Merger Guidelines.”

The FTC and DOJ’s retention of the 2023 Merger Guidelines signals that the Trump administration will seek to implement a bi-partisan approach to merger enforcement that promotes stability and increased certainty for businesses and courts. The memos come less than a month after the DOJ filed its first antitrust lawsuit to block a proposed merger since President Trump’s inauguration. The DOJ’s Complaint in that case relied on the market concentration thresholds used in the 2023 Merger Guidelines.

More information about the 2023 Merger Guidelines can be found in Dechert’s prior On-Point about the issuance of the Guidelines in December 2023:  U.S. Antitrust Agencies Finalize New Merger Guidelines Intended to Reinvigorate Merger Enforcement.

The FTC and DOJ Antitrust Division's memos may be accessed by clicking on the links below.

Federal Trade Commission memo [Memo re Merger Guidelines]

DOJ Antitrust Division memo [Use of the 2023 Merger Guidelines]