Merger Clearance

What you need to know

• Remedies are back in the US: The DOJ and FTC have entered into 16 consent decrees in the first 20 months of the second Trump administration, compared with just three in the last two years of the Biden administration. This marks a shift away from a litigation-first approach. Enforcers remain willing to litigate where remedies fall short, and state attorney generals and private parties are independently challenging deals.
• Merger enforcement in Australia significantly increases: The new mandatory notification regime in Australia is now bringing more transactions before the ACCC as an administrative decision-maker. Of the seven completed Phase 2 reviews to date, three deals were blocked, three were withdrawn early in Phase 2 and only one (Ampol/EG Australia) was approved, subject to remedies.
• Asia and the Middle East are stepping up: SAMR is increasingly calling in below-threshold deals, while Saudi Arabia's GAC reviewed a record 427 filings in 2025 and imposed its first-ever structural remedy in Schlumberger/ChampionX.
• EU and UK moderation: On the other hand, the EC has been more restrained on below-threshold mergers since Illumina/GRAIL, and its new draft merger guidelines include an "innovation shield". The CMA's "4Ps" mergers charter has produced the fewest Phase 1 decisions since records began.
• Acquihires under the spotlight: Regulators in the EU, UK, US and Australia are now scrutinising 'talent-and-licence' deals, which may fall outside traditional merger notification thresholds.
  

Merger control in a shifting global landscape

The global merger control landscape is undergoing a period of recalibration across major jurisdictions. While competition authorities in the United States, United Kingdom and European Union have arguably moved towards a less interventionist approach, in jurisdictions such as Australia more mergers are being reviewed than ever before.

At the same time, competition regulators around the world continue to look out for novel transaction structures such as "acquihires" that may not have been caught by traditional review thresholds but could nonetheless result in meaningful competitive consequences.

A shift to less aggressive merger enforcement (at least in some jurisdictions)

United States

Negotiated merger remedies are back on the table in the second Trump administration, marking a reversal of the aggressive, litigation-first approach pursued by Biden administration enforcers, who were openly sceptical of, and averse to, resolving competition concerns through divestitures or behavioural commitments. The U.S. Department of Justice Antitrust Division (DOJ) and U.S. Federal Trade Commission (FTC) have already entered into 16 consent decrees in the first 20 months of the second Trump administration compared with three in the last two years of the Biden administration.

Openness to remedies does not by itself signal less enforcement. Merger litigation is significantly more resource-intensive than negotiating remedies, so, given limited agency resources, more litigation can lead to fewer enforcement actions. This may explain why only 78 enforcement actions were brought in the Biden administration, compared with 113 during the first Trump administration, including 80 consent decrees. However, more aggressive enforcement may also have a deterrent effect, resulting in fewer problematic transactions reaching the agencies for review; this could likewise explain the decrease in the number of merger enforcement actions.

Current DOJ and FTC leadership has embraced structural and behavioural remedies to resolve competition concerns and has shown a greater willingness to entertain behavioural remedies (e.g., firewalls, licenses, and non-discrimination agreements), particularly for vertical mergers. Republican antitrust enforcers have historically disfavoured such remedies because they require ongoing government monitoring and compliance.

However, the federal enforcers have noted that they are willing to litigate if proposed remedies are insufficient to address competition concerns. During the first year of the second Trump term, the FTC brought four merger challenges—winning two, losing one, and settling one—while the DOJ brought just one challenge in the first ten days of the Trump administration, HP Enterprise/Juniper Networks, which reached a controversial settlement two weeks before trial. The DOJ also settled or abandoned two other merger challenges initiated during the Biden administration. Neither agency has brought a merger challenge this year, and the total volume of merger enforcement actions is on track to fall below Biden-era levels.

Finally, it is worth noting that the state attorneys general and private parties have actively challenged mergers independent of the federal antitrust enforcers. In particular, they have challenged two media mergers that were cleared by the DOJ, one which is pending trial in federal court and the other in which the states have settled the federal court challenge with the merging parties.

Australia

While it is early days in Australia’s new merger regime, all indications are that merger enforcement will be more aggressive than under the old regime. The new notification requirements mean that more transactions are coming to the Australian Competition and Consumer Commission’s (ACCC) attention, and the ACCC is taking its new role as an administrative decision-maker seriously. Indeed, of the seven completed Phase 2 reviews under the new regime, only one transaction (Ampol's acquisition of EG Australia, a fuel retailer) has been approved, with remedies. Three other transactions (Coles' acquisition of a supermarket and liquor site in regional Australia, MicroStar Logistics' acquisition of Konvoy, a competing keg services business and IAG's acquisition of RAC Insurance) have been blocked while the other three have been withdrawn early in the Phase 2 process.

That said, the new regime does enable remedies to be factored into assessments of proposed transactions, and the Ampol/EG Australia matter suggests a willingness to approve acquisitions that might otherwise substantially lessen competition if adequate remedies are offered. In that case, the ACCC’s approval was subject to Ampol divesting 41 retail fuel sites across Australia. Ampol initially offered to divest 19 sites but increased its offer during Phase 2. This case illustrates that negotiated remedies may provide a real solution to competition concerns, perhaps echoing the FTC’s position under the current administration.

Asia

Merger control authorities across Asia are also stepping up enforcement. China's State Administration for Market Regulation (SAMR) leads as the region's most strident enforcer. SAMR is increasingly using its proactive call-in powers for “below threshold” transactions. In the past three years, SAMR has published five decisions involving below threshold transactions which nevertheless raised competition concerns – three were conditionally cleared and two ultimately blocked. The call-in of Meituan’s acquisition of Maiyatian in September 2026, which is currently subject to proposed remedies and a public hearing / consultation, is the latest example of SAMR’s enforcement against below-threshold transactions. This trend means that below-threshold deals are not necessarily "low risk", especially for companies that have sizeable market positions in China or are involved in strategically important industries.

Middle East

Merger control across the Middle East has intensified significantly, with Gulf regulators refining legislative frameworks and building up enforcement capacity. Saudi Arabia's General Authority for Competition (GAC) leads this trend, and is among the most active enforcers in the region.

In 2025, the GAC reviewed a record 427 economic concentration requests, albeit with an average review time of just 5.4 days. The GAC's growing sophistication is also evident in its remedies practice, with the conditional clearance of Schlumberger's US$7.8 billion acquisition of ChampionX Corporation subject to divestment of ChampionX's drilling technologies business marking the GAC's first-ever structural remedy.

Foreign-to-foreign transactions in this period accounted for over 75% of filings, with US parties alone involved in 22% of requests, reflecting Saudi Arabia's growing prominence as a cross-border investment destination. In line with this, recent refinements to require acquisition targets to have some Saudi revenue demonstrate a regime calibrating its jurisdictional reach, even as its broad scope continues to capture transactions with a limited direct nexus to Saudi Arabia.

European Union

The European Commission's (EC) previously aggressive assertion of jurisdiction over “below threshold” mergers has been more moderate under EVP Ribera. However, this likely reflects the EC’s defeat in Luxembourg in Illumina/GRAIL and the pending Run:ai appeal rather than a policy-driven change in enforcement. Illumina/GRAIL also appears to have influenced the draft revised merger guidelines, published in April 2026, with the inclusion of an “innovation shield” interpreted by stakeholders as a deliberate signal that the EC does not presume every acquisition of a nascent innovator to be a “killer acquisition.”

United Kingdom

In the United Kingdom, the Competition and Markets Authority (CMA) has responded to the government’s pro-investment agenda by implementing a mergers charter, which aims to achieve “4 Ps” (pace, predictability, proportionality, and process). In addition, the CMA has adopted a policy to intervene less in global transactions where competition concerns investigated (and remedies agreed) in other jurisdictions would likely address competition concerns in the United Kingdom. These developments are influencing the CMA's choice of whether to investigate mergers. In 2025/2026 the CMA made fewer Phase 1 decisions than in any year since records began in 2003/2004. Where the CMA does investigate, it seeks to reach decisions as quickly as possible, while minimising the burden on businesses. This is reflected in a KPI to clear straightforward cases within 25 working days; a target it has met in all such cases. Beyond this change of approach to straightforward reviews, only two mergers were subject to a prohibition decision in 2025/2026, and remedies were only imposed in five reviews (at either Phase 1 or Phase 2).

Acquihires and other novel transaction structures

European Union and United Kingdom

European competition authorities continue to assess the jurisdictional issues raised by “acquihires,” i.e., transactions involving hiring of employees (rather than acquisition of a business or assets), often with (non-exclusive) IP licenses. Acquihires have become increasingly common in the AI context, where top-tier development talent is scarce. If they do not trip jurisdictional thresholds, acquihires escape merger review. Competition authorities are, however, concerned that such transactions reduce competition where buyers “buy” rather than “build” innovation.

In the European Union, acquihires raise two merger reportability issues. First, is there a “concentration”? While hiring talent without also acquiring assets, IP, or creating structural links is generally not reviewable, hiring employees employed by an entity that also grants an IP license may be reviewable. For example, both the EC and the German Federal Cartel Office (FCO) have taken the view that they can review a transfer of all assets necessary to move a target’s position in generative AI foundation models and chatbots to an acquirer. The CMA took a similar view.

Second, are the quantitative thresholds met? Acquihires escape review if the parties’ revenues fall below the thresholds. Even thresholds designed to capture nascent targets without significant revenues may not be met. Germany’s “transaction-value threshold”, for example, can capture transactions involving targets without revenue if they have “significant domestic activity” and the deal value exceeds €400 million. As a result, although some recent cases exceeded the deal value, the FCO had no jurisdiction because the target lacked significant German activity.

The EC’s draft merger guidelines address labor markets, framing labor as a purchasing market where mergers between employers (including acquihires) may strengthen monopsony/oligopsony power. They do not, however, address the underlying jurisdictional issue.

European authorities may be able to conduct ex-post reviews of acquihires that are outside merger control rules using Article 102, following Towercast.

United States

To date, US antitrust enforcers have not directly addressed acquihires, but that should not be mistaken for indifference. Both the FTC and DOJ have indicated they are watching these deals closely. For example, FTC Chair Ferguson stated that the agency is “beginning to examine these acquihires to make sure they are not an attempt to get around” the merger review process, and Commissioner Meador expressed concern beyond the procedural, characterizing the practice as a form of “buy and kill, but for ultra-skilled labor”. The DOJ has shared these concerns, with former Acting Assistant Attorney General Omar Assefi calling “conduct that appears aimed to circumvent [the formal merger review] process” like acquihires a “red flag.”

Australia

Acquihires have not escaped the ACCC’s attention. It has stated that it is monitoring the use of acquihires by digital platforms and AI firms to acquire the services of people who fall within a limited pool of technical expertise. As a result of commentary that acquihires are being structured to circumvent scrutiny, the ACCC is also closely monitoring international developments.

This potential scrutiny on employment matters compounds the challenges created by the very broad definition of "assets" used in the new ACCC regime, which results in the regime potentially applying to a range of land, IP, financing and other transactions that are not ordinarily considered to be within the scope of merger control. This is in turn requiring competition lawyers and deal parties in Australia to grapple with a series of complex, overlapping and (at times) uncertain exceptions in order to exclude transactions from merger notifications.