FTC and DOJ release 2023 merger guidelines (and PBMs are in the crosshairs)

NCPA December 19, 2023

On Dec. 18, the FTC and the Justice Department lowered the threshold for scrutiny and challenge for mergers in a set of newly released guidelines, effectively making corporate concentration more difficult and making competition more fulsome. Last year, NCPA urged the agencies to amend the guidelines to bring health care consolidation into focus and also include quality, choice, and lower costs for consumers. So, what do the guidelines suggest? If a merger might result in more than a 30 percent market share, or if a newly vertically integrated company would gain control of 50 percent of a related market, then that triggers this increased scrutiny — in response to more than 30,000 comments from across the American economy, from consumers to workers to enforcement agencies to interest groups (like NCPA). Importantly, the revised guidelines list past deals that sent up red flags, which threatened to unduly concentrate a market through “mechanisms” preventing companies from having to deal with regulatory constraints (hello, PBMs) or favoring unique procurement processes privilege the bids of a particular competitor (hello, again, PBMs) — effectively dampening incentives for competition.