Challenging Consummated Mergers Under Section 2

10 Pages Posted: 6 May 2020 Last revised: 26 May 2020

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Koren Wong-Ervin

Antitrust Partner at Axinn, Veltrop, & Harkrider LLP

Date Written: May 21, 2020

Abstract

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

Ginsburg, Douglas H. and Wong-Ervin, Koren, Challenging Consummated Mergers Under Section 2 (May 21, 2020). Forthcoming Competition Policy International, May 2020, Available at SSRN: https://ssrn.com/abstract=3590703 or http://dx.doi.org/10.2139/ssrn.3590703

Douglas H. Ginsburg (Contact Author)

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Koren Wong-Ervin

Antitrust Partner at Axinn, Veltrop, & Harkrider LLP ( email )

950 F Street, N.W.
Washington, DC
United States

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