Merging Innovation into Antitrust Agency Enforcement of the Clayton Act

29 Pages Posted: 17 Jan 2016

See all articles by Richard Gilbert

Richard Gilbert

University of California, Berkeley

Hillary Greene

University of Connecticut School of Law

Date Written: November 1, 2015

Abstract

The treatment of innovation within the merger context by U.S. Antitrust Agencies continues to evolve, with regard to both general statements of enforcement policy and specific enforcement decisions. The respective merger guidelines issued by the Department of Justice and the Federal Trade Commission did not consider potential impacts on innovation or research and development until 1982, and then only in passing. By contrast, their joint 2010 Horizontal Merger Guidelines devote an entire section to innovation issues. This Essay examines both the frequency and manner with which the Antitrust Agencies invoke innovation-based concerns within their respective merger challenges from 2004-2014. It finds that both the DOJ and FTC allege adverse innovation effects in a very large fraction of their respective merger challenges in high-R&D-intensity industries. After exploring possible explanations, the Essay recommends that the Agencies describe their innovation concerns with greater specificity when merger challenges allege harm to innovation.

Keywords: Innovation, Antitrust, Mergers

JEL Classification: K00, K21, L10, O31

Suggested Citation

Gilbert, Richard and Greene, Hillary, Merging Innovation into Antitrust Agency Enforcement of the Clayton Act (November 1, 2015). George Washington Law Review, Vol. 863, No. 6, 2015. Available at SSRN: https://ssrn.com/abstract=2716224

Richard Gilbert (Contact Author)

University of California, Berkeley ( email )

Department of Economics
530 Evans Hall #3880
Berkeley, CA 94720
United States
510 642 1507 (Phone)

Hillary Greene

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
339-203-0931 (Phone)

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