The Archives

The collection of all scholarly commentary on law, economics, and more

Showing archive for:  “DOJ”

The Whole Wide World of Government

First, a bit of self-promotion: the International Center for Law & Economics (ICLE) hosted an excellent panel discussion Feb. 26 on the 2023 merger guidelines. I moderated, but the real attractions were the panelists: Maureen Ohlhausen, Noah Phillips, Bruce Kobayashi, Diana Moss, and Kristen Limarzi. The room was packed, as it should have been. Video ... The Whole Wide World of Government

What Do We Do with Presumptions in Antitrust?

Winter was coming, as it does. We knew the agencies were going to issue new merger guidelines, and then they did. On Dec. 18, 2023, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) jointly issued merger guidelines, supplanting 2023’s draft guidelines, the 2010 Horizontal Merger Guidelines, and the 2020 (partially withdrawn) Vertical Merger ... What Do We Do with Presumptions in Antitrust?

The Conundrum of Out-of-Market Effects in Merger Enforcement

Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National Bank and Topco are often cited on behalf of the proposition that this means any single cognizable market, and that anticompetitive effects in one market cannot be offset by ... The Conundrum of Out-of-Market Effects in Merger Enforcement

The Porcine 2023 Merger Guidelines (The Pig Still Oinks)

Well, they have done it. On Dec. 18, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) issued their final 2023 merger guidelines, as an early New Year’s gift (nicely sandwiched between Hanukkah, which ended Dec. 15, and Christmas) of the porcine sort. The two agencies try to put lipstick on this pig by ... The Porcine 2023 Merger Guidelines (The Pig Still Oinks)

A Consumer-Welfare-Centric Reform Agenda for the Federal Trade Commission

As we approach a presidential election year, it is time to begin developing a  comprehensive reform agenda for the Federal Trade Commission (FTC). In that spirit, this post proposes 12 reforms that could be implemented by new leadership, either through unilateral action by a new chair or (in some cases) majority votes of the commission. ... A Consumer-Welfare-Centric Reform Agenda for the Federal Trade Commission

Hands Across the Agencies

In the headline to a Dec. 7 press release, the Federal Trade Commission (FTC) announced that it, in concert with the U.S. Justice Department (DOJ) and U.S. Department of Health and Human Services (HHS), had managed to “Lower Health Care and Drug Costs, Promote Competition to Benefit Patients, Health Care Workers.” According to the subhead: ... Hands Across the Agencies

Market Power as a Limiting Principle in Merger Enforcement

One of the most important changes in the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) draft merger guidelines is the abandonment of market power as the central element of merger enforcement. The “unifying theme” of the 2010 horizontal merger guidelines was that “mergers should not be permitted to create, enhance, or entrench market ... Market Power as a Limiting Principle in Merger Enforcement

Shining the Light of Economics on the Google Case

The U.S. Justice Department has presented its evidence in the antitrust case alleging that Google unlawfully maintained a monopoly over “general search services” by “lock[ing] up distribution channels” through “exclusionary agreements” with makers and marketers of devices. Google’s agreements with Apple, for example, have made its search engine the default in Apple’s Safari browser. The ... Shining the Light of Economics on the Google Case

A Response to Gus on Our New FTC Overlords

Gus Hurwitz’s closing post in this symposium was a very cogent and persuasive (albeit overly optimistic) take on the current state of antitrust enforcement. I hesitate to quibble with my intellectual superior, but on some points I have a slightly different take. Gus says that law should be made through legislation or litigation, and obviously ... A Response to Gus on Our New FTC Overlords

I, For One, Welcome Our New FTC Overlords

In this post—the last planned post for this symposium on The FTC’s New Normal (though we will continue to accept unsolicited submissions of responses)—I will offer some summary of the ideas that have been shared here over the past month, before turning to some of my own thoughts. To keep your attention rapt, I will ... I, For One, Welcome Our New FTC Overlords

The Changing Role of Structural Presumption at the Federal Trade Commission

The draft merger guidelines that were released July 19 by the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) indicate a shift by the agencies toward an overreliance on structural market factors to trigger merger scrutiny.  For example, Draft Guideline 1—titled “Mergers Should Not Significantly Increase Concentration in Highly Concentrated Markets”—would lower the bar ... The Changing Role of Structural Presumption at the Federal Trade Commission

Draft Merger Guidelines Do Not ‘Return Antitrust to a Sound Economic and Legal Foundation’ – A Response to Professor Kwoka

In a recently published article in ProMarket, John Kwoka of Northeastern University (who “worked on the draft Merger Guidelines while serving at the Federal Trade Commission as chief economist to the chair in 2022”) asserts that the U.S. Justice Department (DOJ) and Federal Trade Commission’s (FTC) draft merger guidelines aim to improve “deficient merger enforcement” ... Draft Merger Guidelines Do Not ‘Return Antitrust to a Sound Economic and Legal Foundation’ – A Response to Professor Kwoka