U.S. government agencies reported 1,992 transactions in FY 2017, up from 1,772 in the previous fiscal year. Increasing every year since FY 2013, this is the highest total of reported merger transactions in the past 10 fiscal years, according to a new Cornerstone Research report.

Trends in Merger Investigations and Enforcement at the U.S. Antitrust Agencies: Fiscal Years 2008–2017 analyzes data from the past 10 annual Hart-Scott-Rodino reports filed jointly to Congress by the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ). The Cornerstone Research report covers the period from October 1, 2007, to September 30, 2017. In fiscal year 2017, agencies challenged 39 merger transactions, down from 47 challenges in FY 2016. Of these, only 8 percent resulted in court proceedings.

Both the FTC and DOJ converted a smaller share of clearances into challenges in FY 2017 compared to historical averages. The DOJ continued to challenge a larger share of the mergers it investigated than the FTC. In FY 2017, the DOJ challenged 14 percent of clearances, twice the FTC’s rate.

Key Trends

• Challenges declined from 47 in FY 2016 to 39 in FY 2017, on par with the FY 2008–FY 2016 average of 38.9. However, challenges as a percentage of reported transactions were 2 percent, below the FY 2008–FY 2016 average of 2.8 percent.
• Most challenges (59 percent) were resolved by consent orders/decrees. The parties abandoned or restructured their transactions in 33 percent of the challenges, and court proceedings were initiated in 8 percent. These percentages are in line with historical trends observed between FY 2008 and FY 2016.
• Clearances—transactions cleared for further agency investigation—as a share of reported transactions reached their second-lowest level in 10 fiscal years.
• Second requests, as a percentage of cleared transactions, were the second lowest since FY 2008.
• Consistent with historical trends, the FTC received more clearances for investigation than the DOJ and was less likely to issue second requests or to challenge mergers it investigated.
• Every year since FY 2011, transactions larger than $500 million have received a higher share of second requests compared to the transactions less than $500 million.
• Pharmaceuticals is the only sector to maintain a positive enforcement focus—the sector receives a disproportionate share of second requests—each year since FY 2008. In FY 2017, the other industries with a high enforcement focus were Retail Trade, Manufacturing, Information, and Wholesale Trade.

Read the Cornerstone Research Report: Trends in Merger Investigations and Enforcement at the U.S. Antitrust Agencies: Fiscal Years 2008–2017.