Agency scrutiny and intervention both in merger control and foreign direct investment (FDI) have intensified. Merger control authorities continue to expand the scope or interpretation of existing rules to catch a wider range of deals. And deals which may historically have escaped scrutiny are now being pursued more vigorously. How are outside counsel navigating this trending restrictive merger/FDI climate, and where are there possible efficiencies?

• Agencies repurposing existing legal tools to expand their reach (e.g., in the EU)
• Case study: Illumina’s acquisition of GRAIL: What will happen now to merger reviews of “below threshold” transactions in the EU?
• Expect filings in transactions that may impact competition and where the parties’ revenues do not necessarily reflect their competitive potential
• Significant transaction multiples are likely to attract scrutiny
• Tougher reviews of non-horizontal mergers
• Merger control/FDI clearance in one jurisdiction does not always mean other agencies will follow or accelerate their processes
• EC simplification efforts: Welcome changes which are likely to reduce the administrative burden for parties in certain deals
• Undertaking an analysis of the potential ESG efficiencies, and inefficiencies, generated by a transaction
• Ensure deal timelines include flex for potentially protracted regulatory processes, including Article 22 referrals in the EU
• Understand where FDI filings are necessary or advisable, and whether the reviews may raise substantive risks and/or affect the deal timeline