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.
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