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On February 23, 2026, the Antitrust Division of the United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) <a href="https://www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-seek-public-comment-guidance-business">launched a public inquiry</a> to consider whether and how to reissue guidelines to minimize antitrust risk in collaborations among competitors.&nbsp; Competitor collaboration guidelines had been in place for nearly a quarter of a century until the Biden administration <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/v250000collaborationguidelineswithdrawalstatement.pdf">withdrew</a> them (without replacement) shortly before leaving office. The Biden administration noted the collaboration guidelines relied on outdated policy statements and analytical methods and failed to address modern business combinations and collaboration methods enabled by current technology, including artificial intelligence and algorithmic pricing models.

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In announcing the public inquiry, the DOJ and FTC spotlighted three areas of specific inquiry. First, what topics would benefit from additional guidance (for example, joint licensing or conditional dealing arrangements)? Second, what new technologies or models would benefit from guidance (for example, algorithmic pricing, information/data sharing or labor collaborations)?&nbsp; Third, what significant legal, economic or technological developments should be considered in any revisions to the prior collaboration guidelines?

The public inquiry should be warmly welcomed by the greater business community which has experienced significant uncertainty about the standards against which competitor collaborations would be judged since the withdrawal of the competitor collaboration guidelines. Exacerbating this uncertainty, the withdrawal came on the heels of the antitrust agencies’ July 2023 <a href="https://www.ftc.gov/news-events/news/press-releases/2023/07/federal-trade-commission-withdraws-health-care-enforcement-policy-statements#:~:text=The%20Federal%20Trade%20Commission%20announced,care%20markets%20that%20affect%20consumers.">withdrawal</a> of the 1996 Statements of Enforcement Policy in Healthcare, a part of which had served for many years as criteria for achieving a “safe harbor” when sharing information with competitors in due diligence, standard setting and other collaborative contexts. Any effort by the antitrust agencies to reintroduce guardrails and guidelines for safe and low-risk exchanges of information in collaborations between competitors would be welcomed with open arms by parties to such collaborations and by those counseling them.

The agencies have invited the public to submit comments of no longer than 18 pages each at <a href="http://www.regulations.gov/docket/ATR-2026-0001/document">http://www.regulations.gov/docket/ATR-2026-0001/document</a>. The comment period will remain open through April 24, 2026.

FTC & DOJ Call for Comments on New Competitor Collaboration Guidelines

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