COMPETITION BEYOND RIVALRY: ADAPTING ANTITRUST MERGER REVIEW TO ADDRESS MARKET REALTIES
By Ausra O. Deluard1
We face a disconnect between how many businesses are operated today and how we as lawyers and economists evaluate them to predict a proposed transaction’s probable impact on competition. The tools on which we have relied for merger review need to be reassessed as competition today in many industries has evolved to place more emphasis on innovative unique value creation over price rivalry. While it’s human nature to crave easy-to-understand rules or set of presumptions, this makes us vulnerable to oversimplified fallacies that ignore the richness and multidimensionality of competition. At first glance, "big is bad" seems to be an obvious antitrust conclusion and a great soundbite, especially in a political environment with growing antagonism towards big business across both sides of the aisle. But if we delve deeper, we begin to realize that there are other factors that should be considered and basing antitrust enforcement decisions on unsupported presumptions drawn from market concentration is a dangerous oversimplification.
This article begins with a brief overview of the history of antitrust merger policy and a discussion of the merger review reform currently underway. The last section presents an examination of the current approaches to merger review and additional factors that we may consider for an enhanced assessment of whether a transaction would substantially lessen competition in today’s economy.
I. A HISTORY LESSON IN ANTITRUST MERGER POLICY