The Case for Different Preliminary Injunction Standards in Merger Challenges

Abstract:     
Much is made of the different standards that the Federal Trade Commission and the Antitrust Division of the Department of Justice must meet when seeking a preliminary injunctions against a merger on antitrust grounds. The differing standards that apply reflect the different natures of the agencies, and were designed for the same reasons that the agencies were designed as concurrent enforcers. Why, then, do the agencies divide pre-merger reviews under the Hart-Scott-Rodino across industry lines? This system subjects the merging companies to different standards because of their industry affiliations. If, as critics maintain, the standards are indeed different, industries will consistently be subjected to more or less stringent merger review based upon which side of the line they fall.

This article argues that the problem isn't that the agencies are different and make use of different preliminary injunction standards, but instead it is that the division of merger review between the agencies by industry inappropriately splits the merger review market, and undermines the purpose of decentralizing antitrust enforcement generally between the DOJ and FTC.

Number of Pages in PDF File: 5

Keywords: merger review, mergers, HSR, Hart-Scott-Rodino, preliminary injunctions, Federal Trade Commission, FTC, Antitrust Division

JEL Classification: L4, L40, K21

working papers series