Merger Guidelines

John Kwoka writes that the antitrust agencies under President Joe Biden made thoughtful revisions to the Merger Guidelines that will strengthen enforcement and competition. However, they still fall short in their treatment of the structural presumption and efficiencies defense, where both economics and the law provide grounds for strengthening. Current practices strain agency resources and permit anticompetitive mergers and acquisitions. The next administration must revisit these two issues.

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 draft Merger Guidelines seek to reduce mergers and acquisitions, especially those that remove potential entrants. However, precluding acquisitions in those settings ignores both what incentivizes startups and investors to take initial risks, as well as the advantages that large incumbents have to parlay acquisitions into further innovation and an array of widely commercialized consumer products. The overall effect may dampen innovation, write Ginger Zhe Jin, Mario Leccese, and Liad Wagman.

Joshua Gray and Cristian Santesteban show how the Federal Trade Commission could have used its 2023 draft Merger Guidelines to focus its challenges against Microsoft-Activision and Meta-Within squarely on the pressing economic concern of protecting competition during critical technological transitions making full use of the law’s traditional incipiency standard.

Cory S. Capps and Leemore Dafny provide their round-one comments on the draft Merger Guidelines.

Carl Shapiro provides his round-one comments on the draft Merger Guidelines.

Dennis Carlton provides his round-one comments on the draft Merger Guidelines.

Most mergers in industries with only a handful of competitors are anticompetitive, so why don’t we block them? The fix is to use a structural presumption to lower the burden for regulators.

A pervasive "Whig" view of United States antitrust history among scholars and practitioners celebrates the Merger Guidelines' implementation of increasingly sophisticated economic methods since their inception in...

The Supreme Court’s 1962 Brown Shoe decision, which found a merger to be anticompetitive even though it would have reduced prices for consumers, remains...