The US FTC resurrects the unilateral pre-approval in merger investigation settlements to halt future anticompetitive mergers

In Short The Development: The Federal Trade Commission ("FTC") revived a long-abandoned policy requiring that Commission orders settling FTC merger investigations include a "prior approval" clause that grants the FTC the unilateral authority to approve (or deny) certain future transactions for a minimum of 10 years. The Background: The FTC voted in July to restore the prior approval policy, and last week issued new guidance, in addition to its first merger settlement including a prior approval provision. In announcing the policy, the FTC stated its view that "too many deals that should have died in the boardroom get proposed because merging parties are willing to take the risk that they can 'get their deal done' with minimal divestitures." The FTC's dissenting commissioners, in a