Beyond Traditional Competition Analysis: Broader Policy Objectives Continue to Shape Merger Control Review

Questions once viewed as peripheral to merger control are increasingly finding their way into transaction review. Sustainability, labor markets, industrial policy, supply resilience, national security, and technological competitiveness are all beginning to influence how regulators assess deals across multiple jurisdictions — even where competition law frameworks themselves have not formally changed.

Those developments were the focus of a recent virtual meeting of World Law Group’s Antitrust, Competition & FDI Group, led by co-chairs Harald Kahlenberg of CMS Germany and Scott Yu of Zhong Lun Law Firm, where members discussed how broader policy considerations are becoming more visible in merger review and related regulatory processes across jurisdictions.

Broader Policy Objectives Are Becoming More Visible in Competition Reviews

Several participants noted that traditional competition analysis remains the central framework in most jurisdictions, but broader considerations are increasingly shaping how transactions are evaluated in practice.

In Australia, Haydn Flack of MinterEllison discussed how the country’s new merger control regime changes the treatment of public benefit arguments in transaction reviews. Under the previous framework, parties could rely on broader public interest considerations — including employment, environmental benefits, and regional impacts — when seeking merger authorization. Under the revised process, however, those arguments can only be raised after a transaction has already been rejected during earlier review stages, making the process more difficult and time-consuming for parties seeking to rely on broader policy objectives.

In Brazil, competition effects remain the core legal standard applied by the Administrative Council for Economic Defense (CADE), the national antitrust authority and the primary government agency responsible for ensuring free competition. Patricia Carvalho of TozziniFreire explained that while Brazilian merger control law does not contain a formal public-interest test, sustainability and labor considerations have increasingly tested the margins of traditional competition analysis. She pointed to recent reviews involving sustainability-focused industry initiatives and data-sharing platforms, where Brazil’s competition authority considered, for example,  environmental goals, but competition concerns involving information exchange, coordination risks, and market foreclosure still determined the outcome.

The discussion also touched on growing attention to labor-related competition issues, including investigations involving exchanges of salary and benefits information among employers.

From a European perspective, Harald Kahlenberg of CMS Germany discussed the European Commission's draft EU Merger Guidelines, which suggest a growing willingness to consider factors such as innovation, resilience, sustainability, security, and defense in merger analysis. While EU law has long recognized certain security and sustainability considerations, Harald noted that "resilience"—particularly the resilience of European industry and supply chains—appears to be emerging as a key focus. Whether resilience will ultimately justify merger approvals that might otherwise raise competition concerns remains to be seen.

Regulatory Review Is Becoming More Layered Across Jurisdictions

Participants also described increasingly interconnected regulatory frameworks surrounding cross-border transactions.

Frank Jiang of Zhong Lun Law Firm discussed how merger review in China now operates alongside the Foreign Investment Security Review (FISR) system, export controls, sanctions, data security regulation, and, more recently, the industrial/supply chain security. He noted that Chinese authorities are paying increasing attention to below-threshold transactions, particularly in sectors involving technology, healthcare, and utilities, creating additional uncertainty for parties that historically may not have anticipated substantive review.

The discussion also highlighted China’s recent decision to unwind the Meta-Menus transaction under the country’s FISR framework, reflecting broader scrutiny of transactions involving technology, data, and national security considerations. However, the Chinese government continues to make efforts to foster an amicable business environment for foreign investors.

In Uruguay, Renato Guerrieri of Guyer & Regules described additional complexity arising when merger review authority rests with sector regulators rather than the primary competition authority. In regulated sectors such as banking, telecommunications, and energy, broader sector policy goals may influence transaction review alongside traditional competition analysis.

Across jurisdictions, participants repeatedly returned to the practical challenge this creates for clients managing multi-jurisdictional transactions. Filing obligations, substantive review standards, political priorities, and related regulatory considerations are increasingly diverging across markets, making earlier coordination and cross-border strategy more important during deal planning.

U.S. Enforcement Continues to Evolve at Both Federal and State Levels

Christopher Wyant of Ballard Spahr discussed shifting enforcement priorities in the United States under the current federal administration, including a decline in blocked or abandoned transactions compared to the prior year and what he described as a generally more business-friendly federal enforcement environment.

At the same time, he noted that state attorneys general are becoming increasingly active in merger enforcement. The discussion highlighted the Kroger-Albertsons litigation as a prominent example of state-level intervention proceeding alongside federal review.

Participants also discussed growing state-level filing requirements requiring parties to provide their federal U.S. merger notification filings under the Hart-Scott-Rodino (HSR) Act directly to state attorneys general, creating another layer of review in U.S. transactions.

Throughout the discussion, members described merger review processes that are becoming more layered, more jurisdiction-specific, and increasingly tied to broader economic and strategic considerations beyond traditional competition analysis alone. While competition law remains central in most jurisdictions, the factors shaping regulatory review continue to expand — creating additional complexity for clients navigating cross-border transactions.