Revisiting the Need for Antitrust Collaboration Guidelines and Guidance

For more than two decades, the DOJ and FTC’s “2000 Antitrust Guidelines for Collaborations Among Competitors” (the “Guidelines”) provided a framework for assessing the antitrust implications of joint ventures, information sharing, and other forms of collaboration among competitors. Issued in April 2000, the Guidelines outlined how the Agencies evaluate such arrangements and the circumstances under which collaborative conduct may raise enforcement concerns. They addressed a broad range of activities and identified principles indicating when collaboration was less likely to present antitrust risk, including the establishment of “antitrust safety zones” designed to enhance predictability.

Over time, the Agencies supplemented the Guidelines with targeted statements recognizing that competitor collaboration can be procompetitive, particularly where coordination enhances public welfare. For example, during the COVID-19 pandemic, the DOJ and FTC issued a Joint Antitrust Statement recognizing that certain collaborations necessary to protect public health—such as efforts to increase production or facilitate distribution of critical supplies—would be viewed by the Agencies as consistent with the antitrust laws. Similarly, the Agencies have suggested that appropriately structured information sharing, particularly the exchange of technical cyber threat information, is “not likely to raise antitrust concerns.” These statements reflected the Agencies’ view at the time that collaboration among competitors, when properly structured, can produce procompetitive benefits.

In December 2024, however, the Agencies withdrew the Guidelines, concluding that they no longer reflected modern legal and economic developments, including advances in artificial intelligence and algorithmic pricing. They also expressed concern that aspects of the Guidelines could be interpreted as creating “safe harbors” not firmly grounded in the antitrust laws.

The decision to withdraw the Guidelines was not without controversy. Then-Commissioner (now Chairman) Andrew Ferguson emphasized that agency guidance plays an important role in “promoting transparency and predictability” for the business community, while cautioning against withdrawing longstanding policy in the final weeks of an administration. Commissioner Melissa Holyoak similarly criticized the decision, warning that withdrawing the Guidelines without replacement would leave businesses “grasping in the dark.”

These dissents highlight a central concern that has since carried forward into the Agencies’ current inquiry: whether, in the absence of guidance, businesses can reliably distinguish between lawful, procompetitive collaboration and conduct that may invite scrutiny under evolving antitrust standards.

Recent statements by DOJ leadership have emphasized the importance of restoring clarity. As Acting Assistant Attorney General Omeed Assefi explained, “[p]rocompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment. The abrupt withdrawal of the prior guidelines left stakeholders without guidance in this important area. Replacing the withdrawn guidelines is key to promoting certainty, allowing American businesses to work together effectively and lawfully, and enabling the private antitrust bar to enhance compliance in this area.”

Against this backdrop, the DOJ and FTC’s February 2026 Request for Information (RFI) reflects a renewed effort to consider whether updated guidance is warranted and, if so, what form it should take. The Agencies have specifically invited comment on a range of issues, including joint licensing arrangements, conditional dealing, and emerging technologies and business models—such as algorithmic pricing, information and data sharing, and labor collaborations.

In particular, the Agencies have requested input on: (i) whether further guidance is needed for specific collaboration frameworks; (ii) how emerging technologies and business models should be addressed; and (iii) what legal, economic or technological developments should inform any revision to the prior Guidelines. The Agencies have indicated that this input will help determine whether and how to reintroduce guidance aimed at improving predictability while continuing to guard against anticompetitive conduct.

Originally due in April, the Agencies have since extended the comment deadline to May 21, 2026, citing the need for more “fulsome input on the development of up-to-date guidance to the business community, building on the previous [Guidelines].” This extension is notable. It reflects the Agencies’ continued effort to solicit broader stakeholder engagement and underscores the opportunity for market participants to influence the direction of any future guidance. It also indicates that the Agencies remain in an information-gathering phase, rather than converging on a settled policy approach.

Early submissions of comments suggest that while many stakeholders favor renewed guidance, they differ materially on what that guidance should do. Some commenters urge the Agencies to restore predictability through clearer examples and in some cases safe harbors for specific types of procompetitive collaboration. Others, however, emphasize that any new guidance should preserve robust enforcement against newer forms of coordination, including algorithmic pricing, information sharing and structurally exclusionary arrangements. The challenge for the Agencies is therefore not simply whether to issue new guidance, but how to strike a balance between providing meaningful clarity and preserving flexibility to address evolving forms of potentially anticompetitive conduct.

Companies and trade associations that collaborate with competitors—or are considering doing so—may wish to evaluate whether to participate in the Agencies’ comment process. With the comment period now extended through May 21, 2026, stakeholders have a continued opportunity to provide practical, experience-based perspectives that may shape the contours of future guidance, and consequently enforcement, in an area likely to impact a broad range of industries.