DOJ, FTC Must Update Antitrust Guidelines to Uphold Sherman Act

The Justice Department’s Antitrust Division and the Federal Trade Commission are at a pivotal moment in antitrust enforcement. With the withdrawal of the longstanding 2000 Collaboration Guidelines in December 2024, and the launch of a joint inquiry into new guidance with the public comment period that ended in late May, the agencies have an opportunity to restore clarity to one of the most complex areas of Sherman Act enforcement: collaborations among competitors.

Updated guidelines would strengthen the Sherman Act by clarifying how firms can comply with antitrust law while engaging in procompetitive activity essential to modern markets. Recent remarks by DOJ leadership suggest the agencies view clear guidance and vigorous enforcement as complementary objectives.

Distinguishing Lawful Conduct

The Sherman Act prohibits only unreasonable restraints of trade, not collaboration itself. Courts apply the rule of reason to most joint ventures and cooperative arrangements, evaluating their actual competitive effects.

For example, in Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., the Ninth Circuit applied rule-of-reason analysis after finding that a nonsolicitation provision between competing healthcare staffing agencies was ancillary to a collaboration to supply hospitals with travel nurses.

Without guidance, firms face uncertainty in applying this standard. Updated guidelines would:

• Clarify how rule-of-reason analysis applies to modern business structures
• Reinforce the distinction between per se illegal conduct (such as price fixing and market allocation) and lawful collaboration
• Reduce confusion that leads firms to avoid beneficial cooperation

The agencies acknowledge “procompetitive collaborations are not only permissible but also encouraged” in today’s economy. Clear guidance would translate that principle into actionable compliance frameworks.

Restoring Predictability

When the 2000 Collaboration Guidelines—which provided a roadmap for assessing joint ventures, information sharing, and other cooperative conduct—were withdrawn two and a half years ago, businesses were left without a clear framework. This forced reliance on scattered case law and ad hoc enforcement signals.

The agencies recognize the withdrawal “left stakeholders without guidance” and created uncertainty in an important area of antitrust law. New guidelines would restore predictability, reduce compliance risk, and provide a coherent analytical structure.

The competitive landscape has changed dramatically since 2000. The DOJ and FTC have explicitly sought input on issues such as: algorithmic pricing; data and information sharing; artificial intelligence and technological collaboration; labor-market coordination; and joint licensing arrangements.

These issues weren’t meaningfully addressed in prior guidance. Updated guidelines can fill this gap by applying established Sherman Act principles to new economic realities, clarifying when data sharing enhances efficiency versus facilitates coordination, and providing guardrails for AI-enabled decision-making.

Encouraging Procompetitive Collaboration

DOJ and FTC statements consistently emphasize that collaborations can promote pro-competitive benefits such as expanding output, lowering costs, driving innovation and entry into new markets.

The 2000 guidelines recognized that “to compete in modern markets, competitors sometimes need to collaborate.”

Updated guidance would operationalize that principle by identifying:

• Safe harbors or “low-risk zones” for joint research and development, production, or standard-setting
• Acceptable structures for information exchanges
• Key safeguards (such as aggregation, anonymization, and firewalls)

This wouldn’t relax antitrust enforcement—it would channel collaboration into compliant forms.

Reducing Chilling Effects

The absence of guidance creates a well-recognized risk: over-deterrence. Firms may avoid beneficial collaboration due to fear of liability, even when conduct would be lawful under the rule of reason. The agencies’ inquiry acknowledges that the lack of guidance may discourage procompetitive collaborations.

New guidelines would reduce chilling effects on innovation and provide firms with confidence to engage in efficiency-enhancing conduct. This is particularly important in industries where collaboration is essential to competitiveness. For example, technology companies participate in standard-setting efforts that allow devices, software, and networks to interoperate. Cybersecurity firms and critical-infrastructure operators may share threat intelligence to respond more quickly to attacks. Airlines may enter limited operational arrangements to provide ground support and maintenance when carriers lack their own infrastructure at a location.

A unified guidance framework also would help ensure consistent application of antitrust principles across DOJ and FTC enforcement actions; different industries and enforcement teams; and cases involving similar fact patterns.

Without such guidance, enforcement risks becoming fragmented and less predictable. Guidelines would promote fairness by ensuring that similarly situated firms are treated similarly.

Strengthening Compliance Programs

Clear guidance would directly improve corporate compliance. Companies rely on DOJ and FTC frameworks for various purposes, such as training employees on permissible versus impermissible conduct, structuring joint ventures and collaborations, and designing controls for information exchanges.

The withdrawal of the 2000 guidelines has made it more difficult to build structured antitrust programs. Updated guidelines would restore that function and enhance ex ante compliance, preventing violations before they occur.

The Sherman Act focuses on economic effects, not labels. The rule of reason requires balancing procompetitive benefits against potential harms. Updated guidelines can clarify how agencies evaluate output, price, and innovation effects; what constitutes cognizable efficiencies; and how to assess competitive harms in complex collaborations.

Supporting International Competitiveness

Modern industries often require shared infrastructure, joint development, and cross-firm collaboration.

Absent clear guidance, US firms may be disadvantaged relative to competitors in jurisdictions with clearer frameworks. For example, firms operating in the European Union and the United Kingdom benefit from explicit frameworks governing collaboration, like the European Commission’s Horizontal Cooperation Guidelines. Guidelines would enable US companies to compete globally, consistent with antitrust principles.

Providing Clarity

The agencies have identified several areas requiring clarity, including joint licensing, conditional dealing arrangements, labor market collaboration, and data and information exchanges. These areas present significant gray zones where the line between lawful coordination and unlawful collusion can be difficult to draw.

Updated DOJ/FTC collaboration guidelines aren’t a relaxation of antitrust enforcement—they are a necessary modernization. By restoring clarity after the withdrawal of prior guidance, new guidelines would promote legal certainty, encourage innovation and efficient collaboration, reduce unlawful coordination, and align enforcement with contemporary economic conditions.

As DOJ leadership has emphasized, effective enforcement depends on clear “rules of the road.” In this sense, collaboration guidelines are not just helpful—they are essential to the continued vitality of the Sherman Act, and to avoid uncertainty and chilling effects.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Mark Krotoski is a partner at Pillsbury and leads the firm’s cyber disputes team and cartel enforcement team. He was formerly the assistant chief of the National Criminal Enforcement Section in the Justice Department’s Antitrust Division.

Preston Taylor Edmondson is a litigation senior associate at Pillsbury in the antitrust and competition group.

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