DOJ and FTC leadership discuss new perspectives on merger enforcement

In speeches delivered only a day apart during the first week of June, Bill Rinner, the new Deputy Assistant Attorney General in charge of merger enforcement at the Department of Justice (DOJ), and Commissioner Melissa Holyoak of the Federal Trade Commission (FTC) discussed aspects of their respective agency’s approach to merger enforcement. Closely aligned with each other, the speeches offered potential insight into how the current agencies may depart from the prior administration’s practices.

In this alert, we discuss the statements made by Deputy Assistant Rinner and Commissioner Holyoak and highlight their key implications for merger enforcement.

Statements by Deputy Assistant Rinner

Deputy Assistant Rinner stressed the administration’s commitment to robust merger enforcement, while making clear that, under the leadership of Assistant Attorney General Gail Slater, the DOJ does not view dealmaking with inherent suspicion. According to Rinner, the DOJ will focus on civil merger enforcement – not regulation – against mergers that are problematic, rather than focusing on more generalized merger deterrence. In an effort to evaluate mergers on the merits on a case-by-case basis, Rinner emphasized the need for procedural fairness and predictability in the merger review process.

In describing how these objectives may be implemented in practice, Rinner marked a departure from prior agency practice by listing things the DOJ will and will not do. According to Rinner, the DOJ:

• Will not send “scarlet” warning letters to parties that they close at their own risk, even after the expiration of applicable waiting periods. Parties are aware that the DOJ has the power to challenge a merger at any point, even years after it is consummated – the DOJ need not reiterate this in warning letters as a substitute for advancing substantive concerns.


• Will not leverage the threat of law enforcement to accomplish broader policy objectives “that are clearly beyond the law.” The DOJ will not use the Hart-Scott-Rodino Act (HSR) process to pursue “off-the-books” relief that cannot be justified in federal court. Rather, if the DOJ concludes that a transaction is illegal and that the harm cannot be remediated through settlement, it will seek an injunction to subject the transaction to judicial review.


• Will not abuse the HSR process by sending requests for additional information and documentary evidence (commonly known as “Second Requests”) to build a separate civil or criminal conduct investigation. Put differently, the DOJ will not leverage the HSR process to do an end-run around the limits on DOJ’s investigative authority.

Conversely, according to Rinner, the DOJ:

• Is prepared to accept effective remedies. In a departure from the prior administration’s general hostility to any form of merger remedy, Rinner reaffirmed the DOJ’s strong preference for structural remedies over behavioral remedies to resolve competitive concerns with a transaction. These remedies must be tailored to the facts of each case, and limited behavioral conditions may sometimes supplement structural commitments. As required by the Tunney Act, the terms of settlements with the DOJ will be made public, but Rinner also welcomed up front, “fix-it-first” solutions where the parties to a transaction can address competitive concerns before enforcers get involved.


• Is committed to transparency in the merger review process. Rinner emphasized the need for open communication between DOJ staff and counsel, both in terms of articulating the agency’s concerns and in crafting potential solutions. Consistent with past practice, Rinner reiterated the need for merger remedies to be robust and provide confidence in their ability to protect competition, but he also stressed the need for public transparency, ensuring openness to public comment, and compliance with the Tunney Act. In doing so, Rinner forswore the so-called “shadow decree” docket, a practice in which, rather than negotiate a publicly available settlement, the DOJ would work behind the scenes to get merging parties to change the terms of their deal and resubmit it for approval, thereby avoiding judicial review.

Statements by Commissioner Holyoak

One day later, Commissioner Holyoak discussed the FTC’s evolving approach to merger remedies. Like Rinner, Holyoak highlighted a policy shift away from the FTC’s recent skepticism towards divestitures as effective remedies. According to Holyoak, under Chairman Andrew Ferguson, the FTC will now more readily consider robust divestiture proposals as a means to resolve competitive concerns. The features of an “effective remedy,” as described by Holyoak, harkened back to agency practices before the Biden years:

• Divestitures of standalone business units are favored. Proposed divestitures should include business units with all the necessary assets, personnel, and infrastructure to ensure the entity can operate independently. Remedies that involve less than a full business unit will be subject to heightened scrutiny.


• Selection of a suitable, upfront buyer is critical. Like the DOJ, the FTC will evaluate whether the proposed buyer is financially stable, properly incentivized, and capable of operating the divested assets successfully without creating new competitive concerns.


• Long-term entanglements are disfavored. Whenever possible, remedies should not require long-term entanglements between a divestiture buyer and the merging parties, especially where ongoing oversight by the FTC would be required to ensure the remedy’s success.


• The FTC will “litigate the fix” when proposals are inadequate. When merging parties try to settle a merger challenge but fail to offer an effective remedy, the FTC will not hesitate to challenge both the underlying transaction and the inadequacy of the remedy proposals.

Key takeaways

In combination, Holyoak’s and Rinner’s speeches may signal a return to a more pragmatic approach to merger enforcement. Enhanced procedural safeguards, legal rigor, and transparency may result in greater predictability in merger review outcomes and offer a framework for the proliferation of unproblematic mergers, while robust – yet targeted – structural remedies may ensure that the pro-competitive benefits of partially problematic mergers are not left behind.

For more information, please contact the authors.