Despite rumors, slogans, and “new” conventional wisdom to the contrary (See, e.g. here, here and the Obama campaign promise to “reinvigorate merger enforcement), it is apparently not the case that the current DOJ is not interested in enforcing the antitrust laws. Perhaps it never was. This interesting interview (HT: Danny Sokol) suggests that the DOJ pressured Google and Yahoo to abandon their deal with a threat to file in federal court to enjoin the transaction. Sandy Litvack (Hogan & Hartson), whom the DOJ hired to prepare to litigate the case if necessary reveals that “We told them we were going to file the complaint at that time of day. Three hours before, they told us they were abandoning the agreement.” Of course, critics of the Bush Administrations’ antitrust policies can say that this is but one instance of aggressive antitrust enforcement — albeit a big one — which should be judged alongside refusals to pursue cases against the Whirlpool/Maytag and Sirius/XM mergers. But we’re dealing with small numbers and anecdotes here which are a woefully insufficient basis from which to reject the alternative — but less newsworthy — hypothesis that the DOJ pursues cases that they believe violate the antitrust laws and harm consumers but does not otherwise.
By the way, do you think the fact that the Google-Yahoo “almost” complaint included a Section 2 claim mean antitrust commentators and critics will count this a monopolization case?