On July 5, 2024, Deputy Assistant Attorney General John Elias delivered remarks at the 22nd session of the Intergovernmental Group of Experts on Competition Law and Policy under the auspices of UN Trade and Development. Elias emphasized the importance of international engagement in advancing enforcement practices, noting that while individual nations enforce their own laws independently, they often respond to similar trends in technology and economic structures.
Elias highlighted significant advances in merger enforcement within the United States, particularly through revisions to the Merger Guidelines. The 2023 Merger Guidelines were developed with input from a broad range of stakeholders including academics, practitioners, experts, international enforcers, and the public. This revision process involved listening sessions and calls for public comment over two years.
The updated guidelines focus on three main considerations: comprehensive coverage of theories of harm in merger review; application of burden shifting to consider rebuttal evidence; and an inquiry reflecting market realities. Elias noted that these guidelines combine previous vertical and horizontal guidelines into a single document to provide clearer guidance on how mergers are reviewed.
The new guidelines also incorporate previously absent theories such as entrenchment theories seen in cases like Visa/Plaid, potential competition theories exemplified by FTC’s challenge against Meta/Within, and labor market theories as demonstrated in blocking Penguin Random House's acquisition attempt of Simon & Schuster.
Elias explained that the 2023 Merger Guidelines follow a burden-shifting framework used by U.S. courts where agencies must establish a prima facie case that a merger may harm competition. Merging parties can then rebut these allegations with evidence showing no substantial lessening of competition.
The guidelines have been updated to reflect modern market realities using advanced analytical tools. For instance, Guideline 9 addresses platform mergers considering unique characteristics like scale effects and data-driven advantages. Guideline 10 focuses on labor markets explicitly recognizing harm to competition within this sector.
Elias concluded by emphasizing transparency as crucial for deterring anticompetitive mergers and establishing public trust. He acknowledged contributions from various stakeholders which have helped shape guidelines better equipped for today's economy.