Monopolectomy: An Antitrust Analysis of Healthcare Facilities Mergers Under the FTC's 2023 Merger Guidelines

Healthcare services markets display a trend toward concentration in recent decades. 1,887 hospital mergers have been announced in the United States between 1998 and 2021. In one regional market—really, in several regional markets—the University of Pittsburgh Medical Center (UPMC) acquired twenty-eight hospitals between 1996 and 2019. UPMC’s consolidating tendency has not slowed down into the present: in June of 2023, UPMC signed a non-binding letter of intent to affiliate with the Washington Health System, which consists of two hospitals. Meanwhile, in December of 2023, the two federal agencies empowered to enforce federal antitrust law, the Federal Trade Commission (FTC) and the Department of Justice (DOJ), released new merger guidelines thatsignal a more aggressive approach to Section 7 of the Clayton Antitrust Act in seeking injunctions against corporate mergers. The new guidelines above all signal a stronger presumption of illegality with respect to mergers and thus require less concrete evidence of a merger’s future individualized detrimental impacts on consumer welfare than previous guidelines for FTC or DOJ’s antitrust division to prosecute such mergers. Whether these guidelines will acquire cachet in the courts and change the state of antitrust law as we know it is an open question.Similarly, in February of 2023, the Department of Justice retracted Clinton-era policy statements creating an “antitrust safety zone” for hospital mergers. This Note will consider how the changes in FTC and DOJ policy signaled by the 2023 guidelines bear upon the healthcare services market. Though ultimately it is not likely that the shift in the agencies’ policies will be perfectly reflected in judicial decisions, healthcare administrators and their legal counsel concerned with the expense of litigation can consult this Note to understand how the FTC and DOJ will analyze mergers in their industry under the new guidelines.