Search

TABLE OF CONTENTS INTRODUCTION 1151 I. THREE PUBLIC COMMITMENTS 1152 A. Private Economic Rights 1153 B. Competitive Markets 1154 C. Social Safety Net 1155 D. Commitments in Tension 1156 II. [...], This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Over the past forty years, there has been a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, there has been a dramatic decline in the weight given to market concentration by the federal courts and by the federal antitrust agencies. Increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. We document this dramatic shift and provide examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. We show using merger enforcement data and a survey we conducted of merger practitioners that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. We then argue in favor of reinvigorating horizontal merger enforcement by partially restoring the structural presumption and by requiring strong evidence to overcome the government’s prima facie case. We propose several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated vs. unilateral anti-competitive effects.

Not available

A study examines the uses of econometric models in the study of impact of merger of firms on pricing. An instance is given of a case between United States Federal Trade Commission and Staples and Office Depot to prove the uses of econometric models.