USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
In addition to econometric analysis, the Agen - cies also consider a variety of qualitative factors, such as industry recognition of the product as its own market and whether the product has pecu - liar characteristics and uses, unique production facilities, distinct customers, distinct prices, There is a significant body of merger jurispru - dence in the US courts. The Agencies do not rely on case law from other jurisdictions in mak - ing enforcement decisions but may co-ordinate with foreign competition authorities on individual merger investigations. 4.4 Competition Concerns The Agencies have investigated mergers under theories 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 pharma - ceutical merger based on a conglomerate bun - dling theory of harm (Amgen/Horizon). and/or specialised vendors. 4.3 Reliance on Case Law Labour market issues were a particular priority for the Biden administration and remain so for the current Trump administration. Consequently, impacts on workers have become significantly more important in merger reviews and challeng - es over the last three years. The Agencies’ 2023 Merger Guidelines specifically address review of a transaction’s potential effects on labour mar - kets by articulating principles of market defini - tion and theories of harm to workers that may result from lessened competition in labour mar - kets. 4.5 Economic Efficiencies The Agencies will consider economic efficiencies generated by a transaction as a potential offset
to competitive concerns. Both Agencies have expressed scepticism about efficiency justifica - tions, however, and the “efficiencies defence” has not been routinely accepted by courts. The burden on parties to demonstrate efficien - cies is significant, and when a reviewing agency believes a transaction would harm competition, even well-documented and substantial efficien - cies are unlikely to fully resolve concerns. Parties must provide evidence that the asserted efficiencies are likely to occur, cannot be accom - plished through other means, and are sufficient to counteract the proposed transaction’s harm to consumers. For efficiencies to be recognised, they must be quantifiable, verifiable and merger- specific and cannot result in any anti-competi - tive 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 pro - posed transactions. Under the Biden Adminis - tration, the Agencies 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 2025, agency heads under the new Trump administra - tion have suggested they may consider different political priorities, such as potential censorship of political speech or extension of diversity, equi - ty and inclusion initiatives. 4.7 Special Consideration for Joint Ventures The Agencies typically review joint ventures (JVs) by analysing their overall competitive effect. JVs may be pro-competitive if they allow participants to provide goods or services that are less expen - sive, more valuable to consumers, or brought to
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