Marleina Paz


Since the beginning of his administration, President Obama and his colleagues at the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have espoused a renewed vigor for horizontal merger enforcement. While this more aggressive stance is appropriate given that the U.S. economy is currently recovering from a recession, the disparity between the government agencies’ and the federal courts’ approaches to examining proposed horizontal mergers poses an obstacle to successful legal analysis in this area. This Article presents four solutions that would close the gap in horizontal merger enforcement between the courts and the agencies—as well as between the agencies themselves—and achieve the government’s antitrust goals of fostering competition and promoting consumer welfare. These solutions regarding the adoption of the new Horizontal Merger Guidelines, consistency between the FTC and the DOJ, the serious consideration of efficiency and efficiency-related arguments, and the utilization of behavioral economics would improve the analysis of potential business combinations. This is especially important in rapidly developing industries that, because of their inherent characteristics, pose unique challenges to determining when a horizontal merger will harm the economy.

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