Better to Ask for Permission or Roll the Enforcement Dice? The Return of the DOJ Antitrust Division’s Business Review Letters & Practical Implications for Curious Companies

In an increasingly uncertain antitrust enforcement landscape, the U.S. Department of Justice’s Antitrust Division (the “Division”) has resurrected its practice of opining on potentially thorny competition questions submitted by companies. On July 8, 2026, Deputy Assistant Attorney General Dina Kallay announced that the Division will restart its business review letter program, a process that allows companies to request guidance from the Division on proposed conduct that may raise antitrust issues, such as a joint venture. Although there are many factors to consider before submitting a request for a review, the Division’s revival of the program comes just two years after its revocation of longstanding guidance on information sharing and the competitor collaboration guidelines. Amid the loss of this guidance, the business letter review program offers an opportunity to receive insights into the Division’s current enforcement perspective and greater certainty for proposed business arrangements or transactions. But those insights come at a cost because the program requires the disclosure of “all relevant data” and “whatever additional information or documents the Division … request[s].”[1]

The Return of Business Review Letters

During remarks at the Hudson Institute Forum for Intellectual Property, Kallay provided an “open invitation” for companies to ask the Division to provide guidance about proposed conduct (“request letters”). According to Kallay, the business letter review process will provide companies with greater certainty about how the Division views the proposed conduct and comfort that the Division will not later challenge it.

The Division’s announcement is significant because the program has been inactive since the beginning of the Biden administration in 2021. However, between 1991 and 2021, the Division issued more than 150 business review letters in response to requests for guidance. Although fewer than five requests were submitted each year from 2009 to 2019, the Division issued nine letters in 2020 as companies sought clarity during the onset of the COVID-19 pandemic. 

When the program was active, the Division generally responded to requests within three to six months and provided a short but detailed analysis of the company’s prospective antitrust liability for the conduct proposed. In one case from January 2013, the Division addressed a proposed joint venture between a fuel services company and an aviation company that would make them the sole provider for flight support services at a Connecticut-based airport.  The Division explained that it had “no present intention” to challenge the proposed joint venture because, among other reasons, it did not appear to produce anticompetitive effects.

However, to receive this guidance, the Division requires a requesting company to provide detailed information about the proposed conduct, such as “the identity and competitive significance” in the relevant product and geographic markets. In return, the Division promises to respond with a letter explaining its present plans for enforcement or non-enforcement of the conduct described, declining to consider the request, or taking another “position or action as it considers appropriate.”  In other words, certainty is not guaranteed. Moreover, a business review letter reflects only the Division’s present enforcement intentions based on the facts presented; it does not bind courts or private litigants, nor does it preclude the Division from revisiting its position if the underlying facts materially change. For these reasons, requests for a business review may not be a surefire solution for either a company or the Division. 

As the Division dusts off the business letter review program, companies should keep the following considerations in mind.

Key Takeaways

• (Relatively More) Certainty in a Time of Uncertainty: Companies considering forward-leaning business arrangements or that otherwise have a lower risk tolerance now have another tool to help gauge their antitrust enforcement risk. This tool may be more valuable in the absence of clear guidance on information sharing or competitor collaborations.
• A More Practical Enforcement Environment … For Now: As the Division’s leadership remains in flux, the revival of business letter reviews is consistent with a more practical, business-friendly enforcement posture.  The program shows that the Division is willing to engage with market participants before potentially problematic conduct occurs.
• Will the Guidance Be Timely and Helpful?: As the Division continues to face staffing shortages, the business review letter program is yet another program that needs to be staffed and managed in order to issue timely and insightful opinions. It may well take longer than three to six months to receive a response given the Division’s reduced staffing and resources. Support from leadership like Kallay is essential, but the proof will be in the timing and quality of the first response.    
• Potentially Limited Value: Although the program is open for business, the Division retains a significant amount of discretion in crafting a response. The Division may sit on a request for half a year, request additional information, decide not to provide guidance, or change its views on an issue under new leadership … which may mean that the juice is not worth the squeeze.

[1] 28 CFR § 50.6.