AAI Highlights Current “Inflection Point” in Policy on Merger Remedies, Publishes New Analysis in GCR Guide to Merger Remedies

Global Competition Review’s (GCR’s) recently published volume, GCR Guide to Merger Remedies, includes a chapter authored by AAI’s Diana Moss. The chapter, Realigning Merger Remedies With the Goals of Antitrust, notes that the U.S. DOJ and FTC are in the unique position to learn from their past experience in merger enforcement, particularly with regard to the effectiveness of their remedies. The commentary highlights the importance of merger remedies in the broader debate over the role and goals of antitrust and argues that three themes are converging to create an inflection point in remedies policy:
  1. There is clearer emphasis on the role of antitrust in protecting competition and promoting consumer welfare through the process and goals of law enforcement. Remedies policy should be aligned with the mission and workings of antitrust, namely through the crafting of effective remedies that deter anticompetitive conduct.
  2. There is an expanding body of evidence on the success and failure of past merger remedies. Merger retrospectives and agency guidance reveal the limitations of both conduct remedies and some structural fixes. This evidence and experience should be reflected in remedies policy.
  3. There appear to be an expanding number of cases where the agencies blocked or forced the abandonment of a merger because an effective remedy could not be found. This highlights the fact that the government’s move to block a merger is in itself an effective remedy, particularly in the more frequently encountered problem of ‘too big to fix’.
Moss’s article is an extract from the first edition of GCR’s The Guide to Merger Remedies, first published in August 2018. The whole publication is available here.