Challenging Consummated Mergers Under Section 2
10 Pages Posted: 6 May 2020 Last revised: 26 May 2020
Date Written: May 21, 2020
In the last year, officials at the U.S. Antitrust Agencies have taken a number of troubling positions with respect to what is required to challenge consummated mergers under Section 2 of the Sherman Act. These include: (1) the contention that Section 2 presents a “lower bar” than Section 7 of the Clayton Act in that Section 2 requires mere proof that the merger was “reasonably capable of” contributing significantly to the acquisition or maintenance of monopoly power; (2) suggestions that evidence of intent may be used as a proxy for probable harm; and (3) the idea that Section 2 can be used to challenge a series of acquisitions no one of which by itself was problematic but which together form an anticompetitive course of conduct. In this article we explain why these contentions are unfounded.
Keywords: U.S. Antitrust Agencies, Sherman Act, Section 2 of the Sherman Act, Clayton Act, United States v. Microsoft, Rambus v. FTC, mergers, consummated mergers, monopoly power
JEL Classification: K21, K22
Suggested Citation: Suggested Citation