USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
Axinn, Veltrop & Harkrider LLP 45 Rockefeller Plaza
New York NY 10111 USA
Tel: +1 212 728 2200 Fax: +1 212 728 2201 Web: www.axinn.com
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation Merger Control Legislation
Merger Guidelines The FTC and the Antitrust Division of the Depart - ment of Justice (DOJ) (the “Agencies”) share jurisdiction over merger review. In December 2023, the FTC and DOJ released updated Merger Guidelines, which describe the “factors and frameworks” the Agencies use to review proposed mergers. The new Guidelines, coupled with recent process changes and the expansion of the content of HSR filings, indi - cate greater antitrust scrutiny of transactions, with lower market concentration thresholds and rejection or narrowing of certain defences. Agency Rules and Guidance The FTC is authorised to issue formal regulations that are “necessary and appropriate” to carry out the purposes of the HSR Act. The ”HSR Rules” are complex and extensive, and address report - ability, exemptions and filing procedures. Signifi - cant revisions to the HSR rules took effect on 10 February 2025. Those revisions have increased the scope of materials that are required for an HSR filing, but did not change the circumstanc - es under which an HSR filing is required.
The primary merger control legislation in the US is Section 7 of the Clayton Act, which prohib - its acquisitions that may substantially lessen competition. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) (Section 7A of the Clayton Act) governs the pre- merger notification process. Mergers may also be challenged under the Sherman Act, which prohibits agreements that unreasonably restrain trade (Section 1) and monopolisation, attempts to monopolise and conspiracies to monopolise (Section 2), or Section 5 of the Federal Trade Commission Act (the ”FTC Act”), which prohibits unfair methods of competition. States, as well as the District of Columbia, Puerto Rico and the Vir - gin Islands, have their own antitrust laws, many of which are analogous to the federal antitrust statutes, and may also challenge mergers under the federal antitrust laws.
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