Merger Enforcement Two Years Later - What Clues Does the Obama Administration's Record Hold For the Years Ahead

Morrison & Foerster LLP

Two years into the Obama Administration, we have enough of a record on merger enforcement to pause and consider whether anything much has changed, and what this record has to say about the likely course of enforcement in the coming years. When the Obama Administration took the enforcement reins, there were many signals suggesting a new attitude of aggression. The new AAG for Antitrust, Christine Varney, had publicly questioned whether the prior administration erred in allowing several high-profile combinations. The Division’s new chief economist had recently co-authored an article criticizing the Division’s merger enforcement as too lax, and had joined with the new FTC chief economist in calling for new diagnostic techniques that most regarded as likely to treat many more transactions as potentially anticompetitive.

How has this desire for change played out? A close examination of the merger enforcement records at both the Antitrust Division and the FTC – as reflected in what the agencies have chosen to investigate, how they have resolved those investigations, and what they have said about them – reveals clear signs of incremental change. We see at least six themes.

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