Executive Summary

• The Department of Justice’s Antitrust Division and the Federal Trade Commission have launched a joint public inquiry regarding potential guidance on collaborations among competitors.
• This request for information is intended to help the agencies develop new guidance after they withdrew the 2000 Antitrust Guidelines for Collaborations Among Competitors in December 2024.
• Collaborations are often procompetitive, enabling firms to reach new markets, develop innovative products, or engage in research and development that one firm alone cannot achieve; the antitrust agencies have the opportunity to address specific areas of modern concern including algorithmic pricing, information exchanges, and artificial intelligence, but should avoid excessive prescription that could stifle procompetitive collaboration.

Introduction

On February 23, 2026, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) launched a joint public inquiry regarding potential guidance on collaborations among competitors.

This request for information is intended to help the agencies develop replacement guidance after they withdrew support for the 2000 Antitrust Guidelines for Collaborations Among Competitors (Collaboration Guidelines) in December 2024. In the announcement, the agencies advised “businesses considering collaborating with competitors…to review the relevant statutes and caselaw to assess whether a collaboration would violate the law.” With many firms lacking antitrust expertise, the withdrawal of the Collaboration Guidelines created uncertainty for businesses seeking to work together and third parties that often act as intermediaries.

Collaborations are often procompetitive, enabling firms to reach new markets, develop innovative products, or engage in research and development that may not be economically feasible otherwise.

Creating new guidelines for collaborators affords the antitrust enforcement agencies the opportunity to address specific areas of modern concern including algorithmic pricing, information exchanges, and artificial intelligence (AI). Guidance, however, should avoid excessive prescription that could stifle procompetitive collaboration.

Withdrawing the 2000 Collaboration Guidelines

In December 2024, the FTC and DOJ announced the withdrawal of the Collaboration Guidelines. The joint statement cited the guidelines’ reliance on “outdated and withdrawn policy statements…[and] outdated analytical methods,” adding that they “fail to address the competitive implications of modern business combinations and rapidly changing technologies such as AI, algorithmic pricing models, vertical integration, and roll ups.”

Among these “outdated and withdrawn” policy statements were three decades-old guidance documents that established antitrust safety zones, which outline circumstances under which the antitrust enforcement agencies were unlikely to challenge certain activity. While informing the health care industry specifically, the information contained in the documents was applied across industries.

In the announcement of the withdrawal, the FTC and DOJ advised “business considering collaborating with competitors…to review the relevant statues and caselaw to assess whether a collaboration would violate the law.” With many firms lacking antitrust expertise to simply “review the relevant statutes and caselaw,” the withdrawal created uncertainty for businesses seeking to collaborate and trade associations that often act as intermediaries in these procompetitive ventures.

Updated Collaboration Guidelines

Collaborations are often procompetitive. They enable firms to reach new markets, develop innovative products, or engage in research and development that one firm alone cannot achieve. Without proper guidance, firms may hesitate to participate in such projects, robbing consumers of potential benefits.

In the announcement, the agencies identified specific areas of interest that reflect several recent investigations and settlements, including algorithmic pricing and information exchanges. More recently, there has been a surge in collaboration involving AI, which could come under scrutiny by the agencies. Updating Collaboration Guidelines that consider these specific areas of concern could fuel procompetitive collaboration that benefit consumers with new, innovative products and lower prices.

Algorithmic Pricing

Updating guidance on collaborations among competitors presents an opportunity to address the growing adoption of algorithmic pricing tools. These tools have raised antitrust concerns in instances where groups of competitors are using a common pricing algorithm.  Typical antitrust principles should apply to such tools: When a common pricing algorithm is used by competitors to artificially inflate prices or restrict output in violation of Section 1 of the Sherman Act, the agencies should investigate and block the collaboration.

The agencies should be wary, however, of creating overly prescriptive rules that could inhibit efficiency-enhancing use of algorithmic pricing. A recent article noted that “30% of food in American grocery stores is thrown away each year, and some experts estimate that translates to nearly $18.2 billion in lost value.” Flashfood is a company “helping grocers reduce prices on items as they near the end of their shelf life.” Partners of Flashfood include Kroger, Piggly Wiggly, Loblaws, and Gelson’s, which have reduced these losses by 27 percent. Furthermore, American Action Forum reviewed one type of pricing algorithm, personalized pricing, that attempts to measure a customer’s willing to pay for a good or service. It concluded that these algorithms can benefit consumers by providing personalized advertisements and discounts.

Recently, in the case Duffy v. Yardi Systems, Inc., the plaintiffs claimed that competing landlords used Yardi’s pricing algorithm to “artificially inflate” multifamily rental prices. In other words, the competitors allegedly engaged in a price fixing scheme. The DOJ and FTC published a joint statement of interest in the case outlining the legal principles that should be applied to claims of algorithmic price fixing. Referencing an earlier statement of interest filed by the DOJ in Re: RealPage, Rental Software Antitrust Litigation, the DOJ explained that it is per se unlawful “for competitors to join together their independent decision-making power to raise, fix, peg, or stabilize prices” under Section 1 of the Sherman Act. The DOJ also claimed that landlords were sharing real-time, non-public, and competitively sensitive data including “actual rents paid, occupancy rates, and records of lease transactions” to train the RealPage pricing model.

The agencies can use this example to create guidance by clarifying:

i. The type of information that can be used to train a common algorithm pricing model: Training a model on publicly available information compared to competitively sensitive information will foster a more efficient market while limiting firms’ ability to collude.

ii. Degree of autonomy over decision making: A price produced by an algorithm that mandates adoption could facilitate collusion or price fixing. An algorithm that produces a recommendation maintains – to varying degrees – individual firm choice. The agency should clarify the necessary conditions of firm autonomy with respect to setting prices using a common algorithm.

iii. The time lag of the input data: Real-time data sharing could better facilitate collusion among users compared to data inputs that are reported with a time lag.

The agencies can also distinguish between a common pricing algorithm and that of algorithmic pricing tools built using proprietary company data – with or without other publicly available data – for the sole use of that company. These pricing tools are unlikely to raise competitive concerns.

Information Exchanges

Information exchanges among competitors raise concerns such as those of common algorithmic pricing tools. Information exchanges – which are often run by third-party consultants and trade associations – conduct industry surveys and provide the aggregated market data to their customers. These surveys often include data on production, costs, salaries, benefits, revenue, and quantities sold. The data are used to help firms compete more effectively.

The recent settlement between the DOJ and Agri Stats, however, highlights the need for guidance with respect to information sharing among competitors. Agri Stats, a meat processing industry information exchange, allegedly disseminated competitively sensitive information that enabled meat producers to raise prices and reduce output in violation of Section 1 of the Sherman Act. American Action Forum previously discussed the competitive concerns.

As with the Collaboration Guidelines, the DOJ – followed by the FTC – withdrew the Antitrust Enforcement Policy Statements Issued for Health Care Industry (1993). This policy statement established information exchange antitrust safety zones specific to the health care industry, yet the reach of the document extended to other industry information exchanges. The safety zones were expanded in the Statements of Antitrust Enforcement Policy in Health Care (1996) policy statement, from which the DOJ and FTC also withdrew.

While the allegations against Agri Stats show that the firm likely operated outside the antitrust safety zones outlined in the 1996 policy statement, firms are currently left with no guidance at all. The agencies can clarify:

i. The use of a third party: Most information exchanges operate using a third-party intermediary to avoid the direct sharing of information among competitors. Uncertainty remains regarding how a third-party intermediary can use both the aggregated data it ultimately shares with information exchange participants and the disaggregated data submitted by individual companies for their own commercial purpose.

ii. The type of information shared: Firms submitting historical information with a sufficient lag should raise little competitive concern. Establishing a recommended time lag based on the frequency of the underlying data should alleviate competitive concerns. Data sharing with respect to future production and prices, however, could afford firms the opportunity to collude. The sharing of non-economic data is unlikely to raise competitive concerns.

iii. Anonymization techniques: It was alleged that Agri Stats “loosely anonymized” its reports, simplifying a firm’s ability to unmask the identity of a competitor. Providing guidance that inhibits a firm’s ability to discern the information of another competitor is paramount to protecting competition. For example, creating a rule establishing the maximum market share one firm can have, a required minimum number of firms submitting data, or a combination of both for a particular line item of an information exchange report for it to be released to competitors can help avoid anticompetitive practices. Such clarification can be classified as an “antitrust safety zone.”

Clear guidance will help competitors avoid raising antitrust concerns while also protecting third-party intermediaries from mistakenly facilitating a collusive environment.

Artificial Intelligence Research and Development Collaborations

The emergence and rapid expansion of AI has led to headlines marking joint ventures within the same or across levels of the technology stack. Multi-billion-dollar partnerships between Microsoft and OpenAI, Google and Anthropic, and others suggest competition is intense. These coalitions have proved fluid, however, as structural changes to agreements continue to be made as the industry continues to evolve and the needs of each firm changes.

AI is a nascent industry operating with few regulatory guardrails. Keeping these barriers to a minimum helps foster the industry’s rapid innovation as AI leadership is in constant flux, often with a new dominant player being replaced as quickly as it was crowned.

The past three years have featured a tremendous buildout in AI infrastructure including grid and energy procurement, data centers, and chips. Collectively, Amazon, Alphabet, Microsoft, and Meta are projected to spend $700 billion on infrastructure in 2026. Yet many of these projects are being done by one company for its own use. Collaboration among competitors could make these transactions more cost-efficient than one company building alone, and once completed, allow companies to produce more output, likely lowering prices. Guidance on such collaborations should outline instances where such joint ventures could run afoul of antitrust. Collaborative agreements conditional on activities that allocate markets, coordinate prices, or bid rigging are per se illegal, and absent evidence of such conditions, infrastructure collaborations should largely be considered procompetitive.

As the industry matures, it is likely that additional collaboration will be necessary to generate industry-wide standards governing data safety, model testing, and portability. Third-party intermediaries, including standards development organizations, will likely be involved in their creation and adoption and should be governed using the rule of reason standard. Voluntary standards that promote interoperability, developed with transparency, and not designed to exclude firms or suppress innovation, are typically procompetitive. Standards often lower switching costs and provide consumers with important safety, operational, and technical information concerning products and services.

Conclusion

The FTC and DOJ should replace the withdrawn 2000 Antitrust Guidelines for Collaborations Among Competitors with a new document that reflects recent agency investigations and other areas of concern. Moreover, these updated guidelines would provide smaller firms that lack regulatory expertise to avoid running afoul of antitrust law.