Two drafters of U.S. merger guidelines sit down with the European Commission's draft merger guidelines. Aviv Nevo helped write the 2023 U.S. Merger Guidelines as Director of the Federal Trade Commission's Bureau of Economics. Bilal Sayyed did the same with the 2020 Vertical Merger Guidelines as Director of the Office of Policy Planning — a framework the 2023 Guidelines retained. Together they read the Commission's draft, published April 30, 2026. They begin with what merger guidelines are for, and who reads them. Nevo works through where the draft tracks the thinking behind the 2023 Guidelines and where it goes further: a new "theory of benefit" that asks merging parties to prove benefits the way agencies prove harm; a much fuller treatment of dynamic competition, covering specific and general innovation and the draft's innovation shield; sustainability and resilience as competitive parameters; and what ecosystems, entrenchment, and portfolio effects add. He closes with what he would tell the Commission about the discretion the draft reserves, and why setting out its limits would help everyone. Nevo is the George A. Weiss and Lydia Bravo Weiss University Professor at the University of Pennsylvania and served earlier as Deputy Assistant Attorney General for Economic Analysis at the Antitrust Division. Recorded June 11, 2026. Full episode transcript (https://tinyurl.com/2wvy8j94)
Two drafters of U.S. merger guidelines sit down with the European Commission's draft merger guidelines.
Aviv Nevo helped write the 2023 U.S. Merger Guidelines as Director of the Federal Trade Commission's Bureau of Economics. Bilal Sayyed did the same with the 2020 Vertical Merger Guidelines as Director of the Office of Policy Planning — a framework the 2023 Guidelines retained. Together they read the Commission's draft, published April 30, 2026.
Nevo begins with purpose. Guidelines serve three audiences: agency staff organizing their own thinking, merging parties trying to anticipate how a deal will be assessed, and courts — often judges hearing their first merger case — looking for a neutral account of how specialists approach the question. That last audience explains a feature both documents share and both took criticism for: heavy citation to case law. The result, in each case, is a document with a great deal of economics in it that is not written for economists.
The convergence runs deeper than structure. The draft abandons the horizontal and non-horizontal division in favor of theories of harm organized around why a merger might be a concern, which is what the 2023 Guidelines did. Both put more weight on dynamic competition. Both are willing to engage with theories the academic literature has not settled — Nevo argues that unresolved economics is a reason to explain your thinking, not to stay silent.
He identifies four departures. The draft says considerably more about innovation. It introduces a “theory of benefit,” which he reads as a genuine change in posture: calling it a theory rather than a defense signals that benefits will be weighed on the same footing as harms, and held to the same standard of proof. Parties will have to explain why scale matters and why only a merger delivers it, rather than offering a narrative. The draft also brings in resilience and sustainability as competitive parameters, and it uses the word discretion in a way the U.S. guidelines never do.
On sustainability, Nevo draws a line. A merger that improves the environmental quality of a product is ordinary quality analysis. A merger defended on the ground that it reduces output in a polluting industry is something else: if we want to tax cigarettes, he says, we should tax cigarettes, not tax them through a merger.
Innovation gets the longest treatment. Agencies have assessed specific innovation — what is in the pipeline — for years. General innovation competition, framed around capabilities rather than products, is newer and harder to bound, since a great many firms do research. Nevo is sympathetic to putting the idea in guidance even before the details are worked out, and thinks the draft’s innovation material would benefit from being gathered in one place rather than spread across several sections.
On structure, the two documents differ more in framing than in result. The draft treats concentration much like a safe harbor; the U.S. guidelines allow either a structural showing or a direct effects case. Near the thresholds, Nevo notes, you will need both — and in Tapestry the FTC led with the loss of head-to-head competition, the structural case following. Ecosystems may be new to merger guidelines, but entrenchment and portfolio effects are not new theories — and Nevo defends setting them out at length, since doing so shows what additional considerations apply when one merging firm is already dominant. Portfolio effects, he suggests, are really about bargaining: a conglomerate entering a new aisle changes its negotiation with the retailer even without a horizontal overlap.
They close on discretion. The Commission’s case law does confer a margin of discretion over economic assessment, and Nevo has no quarrel with that. His recommendation is that the final guidelines say how it will be exercised — evidence backed by facts, matching market reality, grounded in well-understood economics. His concern is not the staff at DG Comp but the pressure they will face, and a document setting out the limits gives them something to point to.
Recorded June 11, 2026.