On May 21, 2026, AAI filed detailed public comments in response to a joint notice of public inquiry from the Federal Trade Commission and Department of Justice regarding potential revisions to the April 2000 Antitrust Guidelines for Collaborations Among Competitors.
Competitor collaborations—which may include joint ventures, trade or professional associations, licensing arrangements, or strategic alliances—are contractual arrangements among rivals that may produce benefits to consumers by enabling firms to offer superior goods or services, bring products to market faster than they otherwise could, facilitate better use of existing assets, or create incentives for output-enhancing investments. But they also present serious risk of anticompetitive harm, particularly where they mask per se violations of the Sherman Act that would otherwise generate criminal liability.
The Agencies withdrew the 2000 Guidelines in December 2024, committing to enforcement on a case-by-case basis and directing businesses contemplating competitor collaborations to review the relevant statutes and caselaw. In their recent notice of public inquiry, the Agencies sought comments on an array of issues that arise in analyzing competitor collaborations.
AAI’s comments make the following recommendations:
General Drafting Principles
- The Agencies should make the revised guidelines accessible not only to businesses and their counsel but the courts, private enforcers, and the public.
- The Agencies should eliminate the suggestion in the 2000 Guidelines that antitrust enforcement may deter procompetitive collaborations.
- Throughout the revised guidelines, the Agencies should give equal attention to sell-side and buy-side conduct, horizontal and vertical restraints, and exclusionary and collusive effects.
- The Agencies should forgo safe harbors and eliminate “safety zones.”
Applying the Rule of Reason
- The Agencies should clarify that the rule of reason has four steps, not three.
- The Agencies should clarify that the plaintiff’s burden at Step 1 of the rule of reason is satisfied by a direct or indirect showing of anticompetitive effects.
- The Agencies should clarify that the defendant’s burden at step 2 is a burden of proof.
- The Agencies should clarify that the defendant has the burden at Step 2 to show procompetitive justifications that are nonpretextual.
- The Agencies should specify that cognizable efficiencies must be “in the relevant market.”
- The Agencies should emphasize the heightened importance of relying on the per se rule when a competitor collaboration’s horizontal restraints lack cognizable procompetitive justifications.
- The Agencies should recognize that vertical restraints that have collusive effects and no cognizable efficiencies can be condemned under the quick-look standard.
Applying the Ancillary Restraints Doctrine
- The Agencies should specify that the ancillary restraints doctrine is an affirmative defense.
- The Agencies should specify that a putatively ancillary restraint is not removed from the per se category simply because it is part of an otherwise efficiency-enhancing integration.
- The Agencies should specify that ancillary restraints can be reviewed under the quick-look rule of reason, not just the comprehensive version.
- The Agencies should reiterate that two or more restraints are “assessed together” only if they are intertwined “inextricably.”
- The Agencies should clarify that the ancillary restraints doctrine does not countenance multi-market balancing for the same reason the rule of reason does not.
Concerted Action
- The Agencies should clarify that every single competitor collaboration—including those that form single entities—constitutes concerted action subject to Section 1 scrutiny.
Collaborations with Both Vertical and Horizontal Elements
- The Agencies should specify that collaborations with both horizontal and vertical elements may be reviewed under the per se rule and may be evaluated for both collusive and exclusionary effects.
Platforms
- The Agencies should address competitor collaborations in markets involving platforms.
Group Purchasing Organizations (GPOs)
- The Agencies should treat GPOs as a distinct structural category of competitor collaboration and provide the dedicated analytical framework their scale and competitive risks warrant.
- The Agencies should explicitly build on the buyer-side market power framework developed in the 2023 Merger Guidelines, according GPOs’ buy-side effects coequal analytical treatment alongside their sell-side effects.
- The Agencies should specifically address the information sharing risks associated with GPO membership.
- The Agencies should address the particularly significant role of exclusionary contracting in GPOs.
- The Agencies should recognize that fee structures can create anticompetitive effects.
Algorithmic Pricing Agreements
- The Agencies should emphasize that an anticompetitive agreement among competitors need not be express and may be inferred from conduct enabled by modern technologies.
- The Agencies should make clear that there is no exhaustive list of plus factors and that the absence of any particular plus factor is not fatal to the inference of concerted action.
- The Agencies should clarify that competitors’ use of the same pricing algorithm may amount to concerted action.
Read the complete comments here: AAI Comments on Revised Competitor Collaboration Guidelines
