USA – WASHINGTON, DC Trends and Developments Contributed by: Ashley Eickhof, Mark Weiss, Timothy Finley and Andrew Black, Baker McKenzie
An important venue for merger review DC is increasingly becoming a preferred venue for the federal antitrust agencies – particularly the DOJ – to litigate merger challenges and file merger con - sent decrees. High-profile merger cases have seen an increase in recent years as the result of FTC and DOJ strategic considerations and evolving enforce - ment philosophies. DC is a preferred venue because it is where the agencies are headquartered, and the agencies have familiarity with the judges, who are well-experienced with antitrust matters. Historically, merger litigation has been spread across several federal circuits, with the 2nd, 9th, and DC Circuits playing prominent roles. The recent rise in merger cases filed in the DC District Court illustrates the DOJ’s continued reliance on the DC courts to pursue both contested litigation and consent decree settlements whenever possible. These recent actions suggest that DC will remain central to the agencies’ merger enforcement strategies in the near term. Continuity of the 2023 Merger Guidelines Despite the change in presidential administrations, the DOJ and FTC maintain an aggressive merger enforce - ment posture. Trump-appointed antitrust leaders have publicly committed to adhering to the 2023 Merger Guidelines. As FTC Chair Andrew Ferguson said in a memo to FTC staff, “If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts.” The 2023 Merger Guidelines are the central framework for evaluating mergers. They mark a significant depar - ture from the 2010 guidelines, shifting the focus back toward structural indicators of market power. Key pro - visions include the following. • Thresholds for presuming harm – the guidelines presume a merger to be unlawful at lower concen - tration levels than the previous guidelines, includ - ing when the combined firm has over 30% market share. • Vertical merger analysis – agencies now assess whether the merged firm can and would foreclose rivals, using a broader set of market structure and incentive factors.
• Monopoly power at 50% share – the guidelines suggest that a firm with over 50% market share may be presumed to have monopoly power. • Additional factors – the guidelines now explicitly address labour market effects, serial acquisitions, and platform competition as factors to be consid - ered. The continuity of the 2023 Merger Guidelines has sur - prised some dealmakers who anticipated a rollback of Biden-era policies. While the current administration is expected to be more receptive to settlements, parties to strategic M&A transactions should still prepare for scrutiny regardless of the party in power and use the Guidelines as a tool for risk assessments and pre- merger planning. A resurgence of consent decrees One significant change with the new administration is the resurgence of consent decrees to resolve merg - er challenges. Whereas the previous administration disfavoured merger settlements, current FTC Chair Andrew Ferguson in his statement regarding a recent merger stressed that “settlements... must be on the table if FTC is to protect competition efficiently and as fully as its resources allow.” Likewise, DOJ Assistant Attorney General Gail Slater echoed this sentiment during her confirmation hearing, stating that the DOJ may take a different approach than its predecessors when “effective and robust structural remedies can be implemented without excessively burdening the Antitrust Division’s resources.” She also emphasised that consent decrees provide transparency and allow for public comment. Recent cases filed in the DC District Court illustrate this. In United States v Safran (2025) , the DOJ resolved its review of Safran’s acquisition of RTX’s actuation and flight control business through a consent decree that included divestitures. Similarly, in United States v Keysight Technologies, Inc. (D.D.C. 2025) , the DOJ accepted a structural remedy to address competitive concerns. This shift suggests that while agencies remain com - mitted to aggressive enforcement, they are also willing to pursue pragmatic settlements – particularly when remedies can be clearly defined and monitored.
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