Q&A: New frontier of merger control
August 2026 | SPECIAL REPORT: COMPETITION & ANTITRUST
Financier Worldwide Magazine
August 2026 Issue
FW discusses the new frontier of merger control with Valeri Bozhikov at Gibson, Dunn & Crutcher UK LLP and Logan Breed at Hogan Lovells Cadwalader.
FW: Why has merger control become such a significant source of uncertainty for dealmakers compared with a decade ago?
Bozhikov: There are two obvious reasons for such uncertainty. First, merger control regimes have proliferated, and many of the authorities now enforcing these laws are less experienced in handling complex, cross-border deals. Second, where antitrust authorities once moved largely in lockstep when reviewing a global transaction, they sometimes do not hesitate to diverge from their counterparts in other jurisdictions. To me, though, the principal driver lies elsewhere. The world has become a profoundly uncertain place over the past decade, and merger control is increasingly deployed as a tool to ‘manage’ that uncertainty.
Breed: Over the past several years, antitrust enforcement has been much more sensitive to the shifting political priorities of agencies’ leadership than in the past, particularly in the US. Currently, despite the fact that more traditional merger remedies are back on the table following the Biden administration’s near moratorium on settlements, the allegations of overt politicisation of antitrust in some merger control matters in the second Trump administration inject a not insignificant level of uncertainty for dealmakers. In addition, there continues to be less coordination between the US and other jurisdictions, leading to disparate merger review outcomes across international enforcement agencies.
FW: Are traditional merger thresholds and frameworks still fit for purpose in fast moving, innovation driven markets?
Breed: There is no better approach available, but regulators should be cautious in applying the traditional frameworks to fast-moving markets without assessing how the features of new technology may affect the more traditional antitrust analysis. In the process of revising the merger guidelines in 2022 and 2023, Democratic enforcers cited the need to strengthen the guidelines to make sure they are “fit for purpose in the modern economy” and “accurately reflect modern market realities”. The 2023 ‘Merger Guidelines’ are a product of these considerations, and while enforcers in the second Trump administration have opted not to replace the new guidelines, we have not seen the agencies utilise some of the more boundary-pushing provisions of the 2023 guidelines that were an effort to adapt enforcement to address evolving market considerations.
Bozhikov: There is nothing wrong with merger laws or frameworks themselves. The rules have worked well for decades. The difficulty lies in how they are applied, and, too often, twisted to serve a desired outcome. That said, I would welcome thresholds that better reflect economic reality in certain regimes – Austria and Germany come to mind – sparing parties endless and unnecessary filings. Legislators evidently disagree, and to be fair, have built remarkably efficient agencies. Authorities, and their soft-law instruments, have not kept pace with a fast-moving M&A market, particularly in the fund context. We continue to notify deals that, in my view, could often be exempt: certain credit, secondary and stakes deals, non-controlling minority-stake transactions among them.
“Antitrust enforcement has been much more sensitive to the shifting political priorities of agencies’ leadership.”
FW: How should parties now assess and mitigate the risk of below threshold call-ins, particularly where a transaction involves nascent competitors or strategic assets but limited turnover?
Bozhikov: Such transactions demand time, careful planning and early, open dialogue with relevant authorities. Trying to fly under the radar rarely works. Authorities with call-in powers tend to have strong merger intelligence and competitors and other third parties never sleep – lodging a complaint takes little effort. My advice is therefore twofold. First, always allow enough time for counsel to analyse the position properly and assess call-in risk. Where that risk is material, consider opening a dialogue with the authority before implementing the deal. Second, ensure the transaction documents are equipped for the eventuality of a call-in, especially where there is a gap between signing and closing, and the intervention comes in that window.
Breed: Call-ins are definitely something that we need to pay attention to, and depending on the industry, there can be a material risk of a call-in – particularly if domestic customers complain or the target operates in a politically strategic market. As a result, buyers are more regularly including provisions in deals that include a ‘springing’ condition precedent when a call-in occurs.
FW: Are vertical and conglomerate theories becoming more disciplined in practice, or do they remain a catch-all for strategic concern – particularly in digital and AI driven markets?
Breed: In the US, challenges based on vertical and conglomerate theories are harder to win and are less commonly used. Courts are increasingly imposing high evidentiary standards requiring proof that a merger increases the integrated firm’s incentive or ability to foreclose competition. In the European Union, they are still important and will drive the analysis in some digital and artificial intelligence deals.
Bozhikov: Vertical and conglomerate theories have always been, and will remain, a catch-all for strategic concern. Consider the European Commission’s (EC’s) latest draft merger guidelines, which reconceive its theories of harm entirely, at least finally officially. We have moved from the familiar ‘coordinated’ and ‘non-coordinated’ effects to a kind of hybrid model that lets the EC formulate wholly new theories of harm to fit the context of a given merger. In the same vein, we now see in-depth, phase two reviews built entirely on conglomerate theories of harm – something unthinkable a decade ago.
FW: How have expanded Hart-Scott-Rodino and European Union filing requirements changed the way companies should approach internal document creation and deal preparation well before signing?
Bozhikov: The growing appetite for scrutinising deals on both sides of the Atlantic has made agencies heavily reliant on what companies’ internal documents actually say. I would go further: the outcome of a complex review is often determined by this evidence, however strong the economic arguments or models may be. Companies must therefore involve counsel early to ensure key documents are free of red flags. But the real preparation has to begin before the deal is even conceived. Acquisitive organisations in particular need to train their people properly – not only on antitrust rules, but on document creation itself. Everyone should understand that nowadays everything leaves a trail, and internal documents have to tell a procompetitive story long before any transaction is on the table.
Breed: We are back to the old Hart-Scott-Rodino form in the US, and companies need to ensure that their internal documents accurately reflect the procompetitive purposes of their transactions.
“Internal documents have to tell a procompetitive story long before any transaction is on the table.”
FW: How important is early regulatory engagement in shaping outcomes under today’s merger regimes?
Breed: Early regulatory engagement really depends on the deal, particularly whether the transaction may have a political element, which is increasingly important. Recently, representatives from the agencies have stressed the importance of engaging with enforcers early in potentially difficult deals, and also encouraged parties to present potential remedy proposals early in the review process.
Bozhikov: Time is everything when shaping outcomes. For certain complex deals, regulatory analysis can run for months before parties are ready to stand in front of an authority and present their transaction, particularly where third-party consultants such as economists are involved. Unfortunately, that is rarely the reality we operate in. Analyses are often rushed, and much of the heavy lifting ends up being done once the request for information start arriving, and we realise the direction the authority has chosen to take. With proper planning and sufficient time, this is almost always avoidable – not the issues themselves, which we cannot make disappear, but the surprises.
FW: In today’s environment, what does ‘success’ look like in merger planning – clearance without remedies, speed to approval, reduced political exposure or long term litigation resilience?
Bozhikov: ‘Success’ is no longer a single metric. Clean clearance without remedies remains the gold standard, but it means little if it arrives too late to preserve the deal’s commercial logic, or if the path there leaves parties politically exposed or vulnerable to challenge down the line. For me, success in merger planning is really about control: anticipating where each of these risks sits, sequencing the strategy so that one objective is not sacrificed for another and building enough resilience into the process to withstand whatever the review throws at it. The best outcome is the one where nothing comes as a surprise and where the client always had a clear-eyed view of the trade-offs from the very beginning.
Breed: The measurement of ‘success’ is very deal-specific and depends on the company’s business needs. On some deals, speed is the priority. On others, the focus is clearance without any remedies. Strategy needs to be adapted to specific needs in every case.
FW: Do you expect further convergence – or fragmentation – between global merger control regimes as we move toward 2027, particularly in sectors such as tech, pharma and infrastructure?
Breed: I expect further fragmentation, at least for the rest of the Trump administration in the US.
Bozhikov: Statistically, I do not think convergence in the outcomes of parallel reviews across multiple authorities is high – quite the opposite. Lawyers tend to exaggerate this point. I do not expect that to change materially by 2027. What I do expect is for geopolitics to play an ever greater role in merger control, with reviews increasingly used as a tool for achieving political ends. That is, unfortunately, the reality we now live in, and we already see it playing out heavily in the foreign direct investment space.
Valeri Bozhikov is partner in Gibson Dunn’s London office and a member of the firm’s antitrust and competition group. He advises clients on EU, UK and international competition law, with a focus on merger control and foreign investment. Mr Bozhikov has represented clients before the European Commission, UK CMA and German Federal Cartel Office. He is recognised by Legal 500 UK and Best Lawyers and is admitted in England and Wales, Belgium and Bulgaria. He can be contacted on +44 (0)20 7131 0326 or by email: vbozhikov@gibsondunn.com.
Logan Breed is a partner and global co-head of antitrust and competition at Hogan Lovells Cadwalader. He is a leading antitrust practitioner with over two decades of experience guiding clients through major merger reviews, high stakes conduct investigations and complex antitrust litigation. Particularly known for his work at the intersection of antitrust and intellectual property, he advises clients across a broad range of industries on joint ventures, strategic collaborations, compliance, pricing, distribution and consumer protection issues. He can be contacted on +1 (202) 637 6407 or by email: logan.breed@hoganlovells.com.
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