Emerging Theories of Competitive Harm in Merger Enforcement

Antitrust Source, October 2011

7 Pages Posted: 10 Feb 2012

See all articles by Darren S. Tucker

Darren S. Tucker

Vinson & Elkins LLP

J. Thomas Rosch

Government of the United States of America - Federal Trade Commission

Date Written: October 1, 2011

Abstract

At least since the early 1980s, the core principles of merger enforcement policy have been stable. Horizontal mergers that create, enhance, or facilitate the exercise of market power and vertical transactions that adversely affect horizontal competition are condemned, and consumer welfare is the touchstone by which these assessments are made. In the past few years, however, the Federal Trade Commission and Department of Justice challenged one merger transaction, and almost challenged another, that departed from this enforcement paradigm. The first, Google/ITA, involved a “potential vertical” transaction, which had never before been the subject of antitrust enforcement. The second, Lundbeck/Merck, involved a conglomerate transaction, which the courts and agencies had not found objectionable under the antitrust laws in decades.

These cases demonstrate that the antitrust agencies are open to novel approaches for analyzing transactions that are believed to present a risk of consumer harm. The cases also suggest that the lack of an existing horizontal or vertical relationship between the merging parties should not necessarily be viewed as an antitrust “green light.”

Keywords: Merger Enforcement, Vertical Mergers, Conglomerate Mergers, Clayton Act, Section 7, FTC, DOJ, Antitrust

JEL Classification: K21, L40, L41, L49

Suggested Citation

Tucker, Darren S. and Rosch, J. Thomas, Emerging Theories of Competitive Harm in Merger Enforcement (October 1, 2011). Antitrust Source, October 2011. Available at SSRN: https://ssrn.com/abstract=2002269

Darren S. Tucker (Contact Author)

Vinson & Elkins LLP ( email )

2200 Pennsylvania Ave NW
Washington, DC 20037
United States

J. Thomas Rosch

Government of the United States of America - Federal Trade Commission ( email )

601 New Jersey Ave., NW
Washington, DC 20580
United States

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