By Lindsay Maher and Kellie Lerner
On February 23, 2026, the U.S. Department of Justice Antitrust Division (“DOJ”) and the Federal Trade Commission (“FTC”) jointly announced a public inquiry on revised guidance governing collaborations among competitors. Since the agencies withdrew the prior Antitrust Guidelines for Collaborations Among Competitors in late 2024, businesses have operated without formal federal guidance in this area.
Revised guidance could clarify how the agencies will evaluate collaborations involving emerging technologies and evolving business models and could better align agency policy with recent developments in Section 1 jurisprudence. As the agencies undertake that effort, however, they should preserve flexibility for case-specific analysis and avoid reinstating rigid “safety zones.”
Why This Matters
Collaborations among competitors, joint ventures, R&D consortia, vertical integration, joint licensing arrangements, and other cooperative structures, can generate efficiencies while also creating competitive risk. For nearly twenty-five years, businesses and practitioners relied on the Antitrust Guidelines for Collaborations Among Competitors (“Competitor Collaboration Guidelines”) to assess that risk.[1]
From April 2000 until their withdrawal in late 2024, the Guidelines:
- Described the agencies’ analytical framework for evaluating collaborations;
- Identified structural and behavioral features that could signal either anticompetitive harm or procompetitive benefit; and
- Established “antitrust safety zones” under which certain collaborations would ordinarily fall outside enforcement concern.
The Biden Administration withdrew the Guidelines on the grounds that they did not “reflect [the] evolution” of jurisprudence interpreting Section 1 of the Sherman Act, including refinements to the ancillary restraints doctrine and the “quick look” framework. The agencies also criticized the Guidelines’ reliance on “outdated analytical methods” and their limited engagement with modern business combinations and rapidly evolving technologies.
The agencies’ 2026 request for comment revisits many of those concerns. Specifically, the DOJ and FTC seek input on:
- Topics that would benefit from additional guidance, including joint licensing and conditional dealing arrangements, and potentially vertical integration or serial acquisitions (“roll-ups”).
- Emerging technologies and business models, such as algorithmic pricing, data and information sharing, and labor-market collaborations.
- Significant legal, economic, or technological developments that should inform revisions to the withdrawn Guidelines.
In announcing the inquiry, Acting Assistant Attorney General Omeed A. Assefi emphasized that “vigorous and effective enforcement can only exist when the rules of the road are clearly outlined,” and that “procompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment.” FTC Chair Andrew N. Ferguson echoed the sentiment, saying that “in an everchanging economy, businesses need transparency and predictability from enforcers more than ever.”
The agencies appear inclined to replace, rather than permanently abandon, structured guidance. The critical question is what form that guidance should take.
The Risks of Reintroducing Safety Zones
The prior Guidelines included safety zones under which collaborations between competitors with a combined market share below 20 percent generally would not trigger enforcement concern. Those thresholds offered predictability. Firms could structure collaborations with some assurance that they would not face immediate scrutiny.
But bright-line thresholds carry institutional costs.
When agencies designate numerical boundaries as presumptively benign, those boundaries can operate as de facto screening tools. Firms may engineer collaborations to fit within formal limits even when underlying market conditions suggest meaningful competitive risk. Agency counsel, in turn, may devote fewer investigative resources to conduct that falls within articulated thresholds.
The Biden Administration rejected that form of line drawing across multiple policy domains. In 2024, the agencies withdrew not only the Competitor Collaboration Guidelines but also other guidelines containing “safe harbors” and “safety zones,” while replacing the 2010 merger guidelines. A consistent theme in those actions was skepticism toward rigid structural thresholds untethered from statutory text and modern doctrine.
Safety zones are formally nonbinding. They do not create immunity. In practice, however, they can narrow enforcement attention. Because such zones often rely on static metrics—most commonly market share—they may fail to capture competitive dynamics in differentiated, innovation-driven, or rapidly evolving markets. Algorithmic coordination, data-driven network effects, and platform-based competition do not always map cleanly onto traditional structural screens.
The result is not clarity alone, but potential blind spots. Incremental or cumulative harms may develop outside meaningful review if both firms and enforcers treat formal thresholds as dispositive.
That does not mean guidance lacks value. To the contrary, businesses require insight into how agencies analyze competitor collaborations. But guidance that emphasizes analytical principles rather than rigid safe harbors better preserves enforcement discretion and adapts more readily to changing market realities.
Conclusion
The DOJ and FTC’s 2026 request for comment reflects a broader tension in contemporary antitrust policy. Competitor collaborations can drive innovation and efficiency, particularly in technology-intensive and capital-intensive sectors. At the same time, the agencies have moved away from rigid structural rules in favor of more fact-intensive analysis.
The wholesale withdrawal of the Competitor Collaboration Guidelines created uncertainty. Any replacement should restore transparency without recreating artificial enforcement boundaries. Revised guidance should articulate governing principles, clarify how the agencies assess ancillary restraints and information exchanges, and address modern business models—while preserving the ability to evaluate collaborations on a case-by-case basis.
The joint inquiry offers businesses an opportunity to shape how federal antitrust enforcers define competitive boundaries for cooperative conduct in the coming years. It also provides the agencies an opportunity to reconsider whether the apparent clarity of safety zones justifies their institutional cost.
Comments must be no longer than 18 pages and are due by April 24, 2026 under docket ATR-2026-0001.
[1] It is important to note that while practitioners and courts give a lot of weight to DOJ and FTC guidelines, even citing to them in court proceedings, the guidelines are non-binding legal authority.
