Recommendations to Update the FTC & Guidelines for Collaborations Among Competitors 

The Biden Administration reinvigorated antitrust enforcement at a scale and pace not seen in decades. Enforcers at the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) made sweeping changes and updates to guidance documents, more heavily scrutinized mergers and acquisitions, and the FTC issued its first rulemaking in 50 years with its April 2024 noncompete ban.

One area which has received less attention from the agencies is the area of competitor collaborations. The existing joint agency guidance, “Antitrust Guidelines for Collaborations Among Competitors” was written in 2000 and is currently out of step with the agencies’ focus on market power considerations and protecting the competitive process. This white paper seeks to provide both a rationale and some suggestions for revising the collaboration guidelines to better align them with the agencies’ current enforcement approaches. The existing guidelines, for example, rely heavily on efficiency defenses for anti-competitive collaborations, which are now disfavored by the agencies and other international jurisdictions, like Canada, which recently removed efficiencies defenses from its competition legislation.