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This article critiques the 2023 Merger Guidelines by the DOJ and FTC, focusing on legal and conceptual challenges.

November 12, 2025The Antitrust BulletinOpen Access

The U.S. Department of Justice and Federal Trade Commission 2023 Merger Guidelines: An Account and a Few Positive and Many Negative Assessments

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This article critiques the 2023 Merger Guidelines by the DOJ and FTC, focusing on legal and conceptual challenges.
Summarizes the DOJ/FTC 2023 Merger Guidelines
Critiques the interpretation of antitrust laws
Analyzes impacts on price and investment competition
Evaluates the concept of market definitions
Identifies violations of constitutional rights and fair notice
Highlight problems in the agencies' approach to M&A legality
Points out gaps in understanding competition determinants
Criticizes inadequate definitions and guidelines regarding vertical M&As

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The critique underscores the constitutional right to fair notice in antitrust laws, highlighting shortcomings in the Merger Guidelines.

Richard S. Markovits (2025) studied this question.

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