Getting to closing: Why merger control now shapes the deal itself

The UK: Faster decisions, not softer scrutiny

In the UK, the most visible shift has been procedural rather than doctrinal. The CMA has moved decisively to address a long-standing concern for investors and businesses: uncertainty created by protracted review processes.

The CMA’s recent procedural changes have a clear objective: reduce investigation timelines without compromising substantive rigour. Time has become a competitive variable. Lengthy investigations impose costs regardless of outcome – on financing, management focus, employee retention and deal momentum. As Joel Bamford, Executive Director for Mergers at the CMA, suggested during the Forum, uncertainty from protracted investigations can itself damage investor confidence, whether or not a deal is ultimately cleared.

The significance of this recalibration lies less in clearance or intervention rates than in what the system now surfaces earlier. Most transactions do not raise competition concerns and are never formally investigated under the UK’s voluntary regime. Where concerns can be resolved efficiently, the CMA is increasingly allowing them to be. Where they cannot, weaknesses are being tested – and exposed – sooner.

What has not changed is the substantive test. The CMA remains focused on competitive effects, particularly in markets of direct relevance to consumers. Nor has the system become permissive by default. While strong cases may reach clearance earlier, weak cases are under no less scrutiny.

Opportunity, with conditions

The shift in UK process has prompted a familiar interpretation: that the window has reopened for deals previously thought too risky. That reading is understandable – but misplaced.

What has improved is not tolerance for weak cases, but the system’s ability to differentiate more quickly between transactions that stack up and those that do not.

For boards and sponsors, this sharpens the risk assessment question. The issue is no longer whether merger control risk can be absorbed or deferred, but whether the strategic logic of the transaction is strong enough to withstand early, reasoned scrutiny.

This is also where political context enters – not through deal-specific intervention, but as part of the range of considerations which may guide decision-making. Regulators are acutely aware of affordability pressures, infrastructure resilience and growth agendas. Transactions that engage credibly with those realities are not guaranteed approval, but those that ignore them invite scepticism.

Voluntary regime and the “wait-and-see” approach

The UK’s voluntary merger control regime remains a distinctive feature – and a source of both flexibility and uncertainty. In practice, its operation has become more nuanced.

Where global transactions are already under review in other jurisdictions, and where the relevant markets are global or wider than national, the CMA is prepared, in the right cases, to take a “wait-and-see” approach before deciding whether UK intervention is necessary. The objective is to avoid duplicative investigations where concerns are likely to be addressed elsewhere. We have seen some instances this year where the CMA has applied this approach, but reserving its right to step in if not satisfied with actions taken by authorities overseas.

Conversely, where markets are national in scope, or where UK-specific effects and remedies are likely to diverge from those considered by other authorities, the CMA remains willing to open a domestic investigation. The distinction is less about formality than focus: directing regulatory effort to cases with a clear and specific UK nexus.

Europe: Complexity as a feature, not a bug

If the UK story is about acceleration, the European picture is one of accumulation. Merger control now sits alongside an expanding array of additional screening tools, each with distinct objectives, thresholds and remedies.

For dealmakers, the challenge is no longer simply compliance, but coordination. EU merger control, foreign direct investment screening, the Foreign Subsidies Regulation, the new Industrial Accelerator Act and expanding national call-in powers must all be considered. As Angélique de Brousse, Senior Legal Counsel, Competition EMEA, Johnson & Johnson, noted, these mechanisms are assessed under different criteria and with very different levels of transparency, creating a more challenging landscape for deal timing, coordination and certainty. The burden is often unevenly distributed, with non-EU investors and strategic assets attracting heightened scrutiny under some regimes.

This layering reflects a broader shift. Competition law in Europe is no longer insulated from industrial policy, strategic autonomy or geopolitical pressure. Even where substantive tests have not formally changed, the environment in which they are applied has.

The implication is that deal execution risk now lies as much in sequencing and engagement strategy as in legal theory. The challenge transactions face is withstanding review under multiple overlapping regimes.

The US: Plural objectives, sharper judgment

In the United States, the debate is often described as politicisation. A more accurate description is pluralisation. Merger control is no longer assessed solely through the consumer-welfare lens. Considerations relating to labour, small business, re-industrialisation and innovation leadership now sit alongside traditional competition analysis.

This does not mean outcomes are arbitrary or unknowable. It means the frame of reference has widened, and with it, the range of arguments regulators expect to hear.

At the same time, there are signs of renewed pragmatism. Remedies, previously sidelined, are again part of the toolkit. The binary logic of clearance or litigation is giving way to a more calibrated approach.

 For dealmakers, this reinforces the importance of a coherent strategy, with submissions supported by credible evidence and recognising the additional considerations now in play.