Acquisitions of Potential Competitors: The U.S. Approach and Calls for Reform

Competition Law and Policy Debate

9 Pages Posted: 21 Aug 2020 Last revised: 27 Nov 2023

See all articles by Koren W. Wong-Ervin

Koren W. Wong-Ervin

Jones Day; George Washington University

James Moore

Axinn Veltrop & Harkrider, LLP

Date Written: December 1, 2020

Abstract

This Article begins with a discussion of the U.S. approach to analyzing acquisitions of potential competitors. We explain the need for exacting standards, including due to the increased difficulties of predicting the future world without the acquisition. Unlike with actual competition, with potential competition there is no history of competition with price and other historical data, which makes the counterfactual analysis all the more difficult. We then consider the evidence that existing laws have resulted in systematic underenforcement and substantial harm to competition, finding no reliable evidence to this effect. We conclude with a discussion of the risks posed by various reform proposals, including the potential for harm to competition and innovation. We also explain how the various proposals would introduce significant uncertainty in antitrust enforcement, which can serve as a tax on transactions.

Keywords: acquisitions, potential competition, Clayton Act Section 7, mergers, killer acquisitions

JEL Classification: K21, K2, L4, L40, L82

Suggested Citation

Wong-Ervin, Koren and Moore, James, Acquisitions of Potential Competitors: The U.S. Approach and Calls for Reform (December 1, 2020). Competition Law and Policy Debate, Available at SSRN: https://ssrn.com/abstract=3677443 or http://dx.doi.org/10.2139/ssrn.3677443

Koren Wong-Ervin (Contact Author)

Jones Day ( email )

51 Louisiana Avenue, NW
Washington, DC 20001
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2028793622 (Phone)

HOME PAGE: http://www.jonesday.com/en

George Washington University ( email )

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Washington, DC 20052
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James Moore

Axinn Veltrop & Harkrider, LLP ( email )

950 F Street, N.W.
Washington, DC
United States
202-469-3512 (Phone)

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