During the Bush administration, the Antitrust Division—and its partner, the FTC—litigated far fewer mergers cases than the typical three or four per year. It won only once, and failed to ascend the courthouse steps for more than five years. The lack of merger litigation was truly remarkable, especially because this litigation is critical for consumers. As just one example, if the Clinton administration had failed to block the Staples/Office Depot merger, millions of consumers would have paid higher prices for office supplies for the past 12 years. The problem with a lack of litigation is that it weakens the division’s skills and ability to litigate effectively and secure meaningful relief in merger enforcement matters.
What’s more, failing to litigate makes each potential case seem ever more daunting. (At the close of the Bush administration the division did go to court in two merger cases.) This timidity in merger litigation must be reversed. The division, like every other part of the Justice Department, prides itself as being the best litigators in Washington, but without the experience it is difficult to effectively litigate.
Besides litigation, the division, along with the FTC, needs to both ramp up enforcement and provide guidance in areas left underenforced in the prior administration. Although the agencies conducted hearings on horizontal mergers, they overlooked many areas of merger enforcement including potential competition, vertical mergers, and mergers raising buyer power concerns. The guidelines addressing potential competition and vertical mergers were last revised in 1984 and are clearly out of date. These guidelines need to be revised to recognize the potential anticompetitive concerns in all three of these areas.
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