USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
competition or tend to create a monopoly in a relevant market. 4.2 Markets Affected by a Transaction Affected markets are defined on both a product and geographic dimension. In general terms, relevant product markets comprise all the products and ser - vices that customers perceive as close substitutes; a geographic market is that area where customers would likely turn to buy the goods or services in the product market. Over the past few years, the Agencies have also focused on a transaction’s potential effects on labour markets, particularly where the parties draw their workforce from a common pool of employees. In addition to quantitative economic analysis, the Agencies also consider a variety of qualitative fac - tors, such as industry recognition of the product as its own market and whether the product has peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, and/or specialised vendors. 4.3 Reliance on Case Law There is a significant body of merger jurisprudence in the US courts. The Agencies do not rely on case law from other jurisdictions in making enforcement deci - sions but may co-ordinate with foreign competition authorities on individual merger investigations. 4.4 Competition Concerns The Agencies have investigated mergers under theo - ries of unilateral effects, co-ordinated effects, the elimination of potential competition, and vertical merger theories of foreclosure of competitors and raising rivals’ costs. In 2023, the FTC also brought a challenge to a pharmaceutical merger based on a conglomerate bundling theory of harm (Amgen/Hori - zon). Labour market issues were a particular priority for the Biden administration and remain so for the cur - rent Trump administration. Consequently, impacts on workers have become significantly more important in merger reviews and challenges over the last several years. The Agencies’ 2023 Merger Guidelines specifi - cally address review of a transaction’s potential effects on labour markets by articulating principles of market
definition and theories of harm to workers that may result from lessened competition in labour markets. 4.5 Economic Efficiencies The Agencies will consider economic efficiencies gen - erated by a transaction as a potential offset to com - petitive concerns. Both Agencies have expressed scepticism about efficiency justifications, however, and the “efficiencies defence” has not been routinely accepted by courts. The burden on parties to demonstrate efficiencies is significant, and when a reviewing agency believes a transaction would harm competition, even well-doc - umented and substantial efficiencies are unlikely to resolve concerns fully. Parties must provide evidence that the asserted effi - ciencies are likely to occur, cannot be accomplished through other means, and are sufficient to counteract the proposed transaction’s harm to consumers. For efficiencies to be recognised, they must be quantifi - able, verifiable and merger-specific and cannot result in any anti-competitive reduction in output or service. The Agencies will not consider vague or speculative claims. 4.6 Non-Competition Issues Historically, the Agencies have not considered non- competition issues when analysing proposed trans - actions. Under the Biden Administration, the Agen - cies suggested that they would consider impacts of transactions on a variety of factors, including the environment, social and racial equity, and privacy. As of May 2026, agency heads under the second Trump administration suggested they may consider differ - ent political priorities, such as potential censorship of political speech or extension of diversity, equity and inclusion initiatives. Under an “America First” anti - trust framework, the Agencies have pivoted towards issues that directly affect cost of living, domestic supply chain security, and protecting “Made in USA” manufacturing. The Agencies also scrutinise technol - ogy platforms for alleged political censorship and are challenging corporate diversity, equity and inclusion (DEI) mandates.
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