Merger control and the growth imperative

Something strange happened to merger control in 2025. Globally, deals blocked or abandoned fell by more than half – to just 16 out of thousands considered – even as conditional clearances surged to 95, up 30% on the year before.

Behavioural remedies, long regarded by serious antitrust practitioners as promises waiting to be broken, accounted for more than half of all conditional clearances. The UK’s Competition and Markets Authority (CMA) opened just three Phase 2 investigations – the lowest figure on record – after years of being one of the more interventionist major regulators. In the United States, the new administration blocked nothing.

The story being told about these numbers is one of sensible course correction: competition law was weaponised by overreaching bureaucrats, business confidence suffered, growth stalled, and a more pragmatic approach has restored sanity.

The story is also being told too simply, and by people with an interest in its conclusion.

There is something to this. Some regulators had extended their theories of harm well past what the evidence could support. The CMA’s clearance of the Vodafone/Three merger – a four-to-three mobile consolidation cleared on behavioural commitments in December 2024, after years of structural-remedy orthodoxy – is not obviously wrong.

But the story is also being told too simply, and by people with an interest in its conclusion.

When growth becomes the test

The problem is not that growth matters – it obviously does – but that “prioritise growth” is doing a great deal of work without much accountability.

In January 2026, the UK’s National Audit Office (NAO) surveyed 56 regulators subject to the government’s Growth Duty and found that 71% had changed how they operate as a result. That sounds like responsive governance.

Then the NAO added that the responsible government department had not asked regulators or their sponsors to articulate their risk appetites, had no way of confirming whether the duty had improved growth, and could not identify whether any harms had followed from the shift in behaviour. Only four parliamentary select committee hearings had mentioned the Growth Duty since its introduction in 2017.

Growth is a ministerial priority. It is apparently not a subject of serious scrutiny.

Growth is a ministerial priority. It is apparently not a subject of serious scrutiny.

The UK has been unusually explicit about this reorientation. In January 2025, the government removed the CMA’s chair on the grounds that he had not demonstrated sufficient commitment to the growth agenda. His replacement – a former Amazon UK chief – was confirmed as a permanent appointment in February 2026 with praise for his “pro-growth” posture.

A January 2026 consultation proposes ending independent adjudication of major mergers. Under the proposal, Phase 2 decisions would move to CMA board sub-committees, with external experts appointed by the Secretary of State.

Whatever else this achieves, it concentrates merger adjudication inside the CMA’s leadership, with only judicial review (limited to procedure, not substance) as a check.

The other direction

Other governments are making the same calculation in the opposite direction – and with equal conviction.

Canada’s 2023 and 2024 amendments to its Competition Act did away with the efficiencies defence and introduced a statutory structural presumption: a merger with sufficient market concentration is presumed anti-competitive, and the burden falls on parties to prove otherwise. The Competition Bureau’s annual plan frames enforcement as a cost-of-living issue – groceries, housing, financial services. This too is economic policy. It just has a different view of which consolidation destroys value.

Australia, for its part, decided the previous system – voluntary notification, discretionary review – was too permissive by design. From 1 January 2026, mergers above defined thresholds must stop and wait for Australian Competition and Consumer Commission (ACCC) clearance before completing. The regime is new. Whether the ACCC’s current pace holds as deal volumes grow, and whether merger review resources will come at the cost of other enforcement work, remains to be seen.

The small market problem

The tension is sharpest in smaller markets, where the logic of competition law strains against the logic of industrial scale.

New Zealand’s Commerce Commission has flagged preliminary competition concerns over whether Gull and NPD – the country’s two main independent low-cost fuel retailers – should be allowed to combine into a national network. The strategic argument for the merger is that a larger independent can better challenge the country’s three dominant branded retailers – Z Energy, BP, and Mobil – which operate the majority of New Zealand’s staffed service stations. The argument against is that Gull and NPD are each other’s closest competitor, and that the Commission’s own 2019 market study found fuel prices were already higher than a workably competitive market would produce.

Both arguments are correct. That is the problem.

New Zealand’s Government has explicitly chosen not to follow Australia into mandatory notification. This is framed as a growth choice – competition, the minister says, is “a key driver of growth, innovation and productivity.” But it is also an acknowledgement that a small regulator with limited staff cannot process a mandatory notification caseload while conducting market studies, enforcing consumer law, and supervising regulated utilities.

Every jurisdiction is making a version of this trade-off.

What the divergence reveals

The simultaneous tightening in some jurisdictions and loosening in others isn’t evidence of regulators updating their models based on evidence. It is evidence of politics.

Canada and Australia are responding to cost-of-living pressures by building harder enforcement systems. The UK is responding to investment and competitiveness concerns by building a more deferential one. The evidence base – on whether mandatory notification deters benign deals, whether structural presumptions overcorrect in dynamic markets, whether independent panel review produces better outcomes than board sub-committee review – is genuinely contested.

What is not contested is the accountability gap.

Merger control decisions are made largely without real-time parliamentary scrutiny, without systematic monitoring of outcomes, and without any mechanism for attributing competitive harm – or benefit – to specific institutional choices. Governments are reforming competition regimes at speed, in multiple directions, on the basis of political readings of economic conditions.

Regulators instructed to produce growth rather than protect competitive conditions are being asked to do something they cannot measure, by people who will not be around when the measurement becomes possible.

The NAO’s finding that the Growth Duty produced widespread behavioural change among regulators without any audit of what that change produced should give pause.

This is, in the end, a question about what competition regulation is for. It was built to preserve the conditions under which markets produce good outcomes – price discipline, innovation, variety – not to directly deliver any of those outcomes itself.

Regulators instructed to produce growth rather than protect competitive conditions are being asked to do something they cannot measure, by people who will not be around when the measurement becomes possible.