Fix It or Forget It

Competition Policy International, Antitrust Chronicle, Summer 2021

9 Pages Posted: 2 Sep 2021

See all articles by John E. Kwoka, Jr.

John E. Kwoka, Jr.

Northeastern University - Department of Economics

Spencer Weber Waller

Loyola University Chicago School of Law

Date Written: August 31, 2021

Abstract

The inherent limitations of remedies as a method of resolving competitive concerns with mergers have become more evident. The expansive use of remedies in actual practice has likely exceeded the capabilities of agencies and courts; and empirical evidence has increasingly cast doubt on their effectiveness. Accordingly, we propose a “no-remedies” policy under which the antitrust agency would not accept any conduct remedies and only limited divestitures. The agencies would only consider those structural changes that have been undertaken (or at least committed to) prior to the parties’ filing their merger proposal and would not enter into negotiation with the parties during the review period. This “Fix It or Forget It” (“FIFI”) policy would encourage merging parties to initiate the necessary competitive fixes and permit the agency to evaluate precisely what the parties file in their proposal. We believe this policy would strengthen merger enforcement by restoring the traditional roles of the agencies and the courts.

Keywords: mergers, remedies, behavioral, structural, Clayton Act, FTC, antitrust division, Tunney Act, DOJ

JEL Classification: K21,K42, K41, L4, L50, L51

Suggested Citation

Kwoka, John E. and Waller, Spencer Weber, Fix It or Forget It (August 31, 2021). Competition Policy International, Antitrust Chronicle, Summer 2021 , Available at SSRN: https://ssrn.com/abstract=3915083

John E. Kwoka

Northeastern University - Department of Economics ( email )

301 Lake Hall
Boston, MA 02115
(617) 373-2882 (Phone)
(617) 373-3640 (Fax)

Spencer Weber Waller (Contact Author)

Loyola University Chicago School of Law ( email )

25 E Pearson St.
Room 1041
Chicago, IL 60611
United States
312-915-7137 (Phone)
312-915-7201 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
132
Abstract Views
553
rank
298,158
PlumX Metrics