[author: H. Holden Brooks, Benjamin R. Dryden, Alan D. Rutenberg, David W. Simon]

At last week’s Antitrust in Health Care conference sponsored by the American Health Lawyers Association and the American Bar Association, the heads of both federal antitrust enforcement agencies, the Federal Trade Commission and the Antitrust Division of the Department of Justice, delivered remarks making clear that fighting anticompetitive effects in health care markets remains a top priority and that they will continue to pursue health care mergers that they believe threaten competition.

The remarks follow several weeks of significant action on the FTC’s hospital merger enforcement docket, with two preliminary injunctions being granted in favor of the FTC and one recent loss being set up for potential review by the United States Supreme Court. After significant disappointments in the 1990s and 2000s, the FTC has pursued with renewed vigor enforcement actions to block or undo hospital mergers, with that effort appearing to bear fruit. The agency’s success coincides with a measurable uptick in the number of hospital mergers, which reached a 10-year high in 20111, ostensibly spurred by the Patient Protection and Affordable Care Act (PPACA).