Antitrust and Competition

How the Illumina/Grail Opinion Updates Case Law on Vertical Mergers and “Litigating the Fix”

Steven C. Salop analyzes the Fifth Circuit Court’s opinion accepting the Federal Trade Commission’s suit to block Illumina’s acquisition of Grail. The ruling sheds light on how courts may approach vertical merger analysis and “litigating the fix” in the future, and what this may mean for the Merger Guidelines’ approach to vertical mergers.

The New and Improved 2023 Merger Guidelines

The final version of the Agencies’ Merger Guidelines are a thoughtful improvement over the draft version, writes Fiona Scott Morton. Both the economic and legal analysis in the final version promise to more effectively prevent harmful mergers and bring U.S. antitrust into the modern age.

The Necessity of a Consumer Welfare Standard in Antitrust Analysis

As a goal of antitrust, the consumer welfare standard has borne unfair attacks, which we refuted in a previous article. In this second article, we explain how the consumer welfare standard, understood as a method rather than as a set of goals, enables antitrust authorities and courts to navigate the inherent ambiguities of the competitive process and facilitate procompetitive outcomes.

Furthering Ecosystem Analysis in Antitrust

Large digital platforms have evolved into vast multimarket/multiproduct conglomerates, both organically and through a decade-long acquisition spree. Conduct and mergers can no longer be evaluated “market-by-market.” Yet the antitrust assessment of these “ecosystems” is still in its infancy, and regulators seeking to explore harm arising from the control of multiple assets and capabilities are falling back on traditional theories of harm that are more likely to resonate with judges. Substantive progress is unlikely to emerge spontaneously from consultants or academia, and regulators will need to harness interest in this space by motivating and coordinating relevant policy research, argues Cristina Caffarra.

What’s Next for Copyright in the Age of Artificial Intelligence?

In new research, Christian Peukert and Margaritha Windisch review how copyright laws and practices have evolved to adapt to new technologies and discuss the various issues scholars and policymakers must address as copyright law is once again forced to adapt to the emergence of artificial intelligence.

The Kroger-Albertsons Merger Threatens Smaller Upstream Suppliers

Much of the conversation of the proposed Kroger-Albertsons merger has focused on the risks to consumers. However, the merger also poses serious implications for the grocers’ upstream suppliers, particularly smaller regional firms.

Merger Law Reaches Acquirer Incentives and Private Equity Strategies

Steven C. Salop argues that Section 7 of the Clayton Act prohibits mergers in which the acquiring firm’s unilateral incentives and business strategy are likely to lessen market competition.

Tim Wu Responds to Letter by Former Agency Chief Economists

Former special assistant to the president for technology and competition policy Tim Wu responds to the November 27 letter signed by former chief economists at the Federal Trade Commission and Justice Department Antitrust Division calling for a separation of the legal and economic analysis in the draft Merger Guidelines.

The Kroger-Albertsons Merger Will Not Help Grocery Competition

Kroger and Albertsons say they need to merge to compete with Walmart. Claire Kelloway argues that what they really want is Walmart’s monopsony power, and permitting mergers on these grounds will only harm suppliers, workers, and consumers.

Letter to the Editor: Former FTC and DOJ Chief Economists Urge Separation of Economic and Legal Analysis in Merger Guidelines

Seventeen former chief economists of the Federal Trade Commission and the Department of Justice Antitrust Division urge current Agency heads to separate the legal and economic analysis in the draft Merger Guidelines to strengthen the role of the latter in merger review.

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