How the New Anti-Merger Policy May Be the New Antitrust Paradox

Neo-Brandeisian policies that would chill acquisitions by highly capitalized companies, or companies with 30%+ market share in some related market, would remove from the competitive race the companies that often have the best prospects for de-consolidating many markets, including digital markets that are prone to tipping.

By Maureen K. Ohlhausen & Taylor M. Owings^[1]

I. INTRODUCTION

Neo-Brandeisians are in control at the White House, the Federal Trade Commission (“FTC”), and the Department of Justice Antitrust Division (“DOJ”). Raising barriers to mergers is in; concern about the impact of overenforcement is out. The classic Borkian antitrust “paradox” (that certain misguided forms of antitrust enforcement can be counterproductive to the goal of increasing competition) is out of vogue and maligned in public discourse. A little over a year since the Biden Executive Order on competition,^[2] it’s helpful to take stock of the Administration’s policy on mergers and whether it risks falling into the original paradox of counterproductive overenforcement.

II. THE POLICY

Public statements from President Biden, FTC Chair Lina Khan, and Assistant Attorney General for Antitrust Jonathan Kanter have all sounded the call that antitrust enforcers should be discouraging or blocking more mergers.^[3] The Biden Executive Order on competition prompted a joint FTC/DOJ statement expressing skepticism that the merger guidelines accurately reflect current economic rea