The US Federal Trade Commission intends to build on its recent victory in the Edwards-JenaValve merger trial about rival cardiac device inventors by continuing to examine innovation deals focused on precommercial products, FTC Bureau of Competition Director Daniel Guarnera announced Monday.
“We did not focus in court about what might happen months or years from now, when these products receive final FDA approval and are on the market. We looked at the competition that was in place today, and the Court adopted the argument that current head-to-head competition, even in these innovation markets, was sufficient to make out a Section Seven claim,” Guarnera said, referencing the merger control focused segment of one of the nation’s bedrock antitrust statutes, the Clayton Antitrust Act.
“So that is an important type of case [and] type of evidence that we'll continue to look at,” he added. “You could imagine cases in the pharmaceutical industry, for example, where similarly either one — or both — products is in the drug approval pipeline, but that the current and pipeline product, or two pipeline products constrain each other today, not just anticipating what will happen when they will receive FDA approval on the market, right?”
The FTC is especially likely to take a hard look at research entities whose documents or testimony shows that the two organizations are locked in a fierce innovation race, the bureau director said. “It's very hard to overcome that kind of evidence, because it just shows the way that the real market participants are thinking about each other,” he explained.
The agency will impose a high bar on any flailing or failing firm defenses put forward by head-to-head rivals attempting to merge, just as both the government and ultimately a judge did in the Edwards case.
“It's really important for us at the FTC to see what the shop process was and to be very confident that that shop process was thorough enough and broad enough and had all the requisite procedural steps in place to identify whether any potential buyer who would create fewer competition harms than the eventual buyer to make sure that those other firms have a had a fair opportunity to bid on the firm at issue,” Guarnera said. “The fact that the firm that ultimately is trying to buy the failing or flailing firm is willing to pay the most is sort of a non sequitur, right?”
According to Guarnera, dealmakers with either a failing or flailing company defense is a “recurrent fact pattern” in FTC merger probes, including in the Edwards case where the claim was made in a “fast and loose way that, ultimately, obviously did not persuade us or the court.”
*"Washington Antitrust and Digital Markets Forum," MLex, George Washington University Competition Law Center, Forum Global, Washington, DC; March 23, 2026.
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March 23, 2026, 23:18 GMT | Insight
The US Federal Trade Commission intends to build on its recent victory in the Edwards-JenaValve merger trial about rival cardiac device inventors by continuing to examine innovation deals focused on precommercial products, FTC Bureau of Competition Director Daniel Guarnera announced Monday.