On Sept. 13, Assistant Attorney General Jonathan Kanter delivered remarks[1] at the Georgetown Antitrust Law Symposium, largely focusing on merger control enforcement at the Department of Justice (DOJ) under his leadership. After touting the Antitrust Division’s increased appetite for merger control litigation in the 10 months since his appointment, delivering on a promise that negotiated divestitures should be “the exception, not the rule,”[2] Kanter offered a preview of DOJ’s thoughts as it collaborates with the Federal Trade Commission (FTC) on updating their joint Horizontal Merger Guidelines and Vertical Merger Guidelines. President Biden instructed the agencies to review the merger guidelines in his 2021 Executive Order on Promoting Competition in the American Economy.[3]

Two themes emerged from Kanter’s remarks, which indicate likely objectives for the new merger guidelines: that speculative theories of harm are sufficient to block a deal under the Clayton Act and that, at times, direct evidence of competition dynamics can supplant a structural analysis of concentration in a fastidiously defined market.