Transparency In Merger Enforcement: Taking Stock of the Deals That Didn't Bark

More than 82% of merger enforcement actions announced by the U.S. antitrust agencies in 2024 involved a litigated challenge (complaint) or the deal being abandoned. But only 17 enforcement actions were reported in total—well below the number of Second Requests reported by the agencies each year in annual reports to Congress. In other words, agency press releases were focused on only complaints and abandonments, leaving out substantial activity that went unreported. This unreported activity, however, is important for companies considering how long it takes to clear their deals.

To help fill that gap, we have created a substantially larger dataset of extended (Second Request) investigation activity that includes both announced enforcement actions and investigations publicly disclosed by merging parties, which goes back to 1996. These data provide the backbone for Akin’s Agency Transparency in Merger Enforcement (TIME) Report, a more comprehensive view of merger investigation outcomes than is available from agency statements alone.  Key findings in our first report include:

• In 2024, at least 58% percent of publicly disclosed Second Request investigations concluded without any agency press release, which is substantially higher than the 26% recorded for 2020.
• At least 60% of publicly disclosed Second Request investigations ended with a closed deal under the Biden administration. By comparison, this figure was 75% during the first Trump administration.
• The number of Second Request investigations disclosed in press releases fell by 32% under the Biden administration, reducing agency transparency.
• The duration of Second Request investigations with and without agency press releases converged in 2024, showing that even parties to investigations that were not the subject any of formal enforcement action needed an average of around 11 months to obtain clearance.