Over the past twenty years, merger enforcement in the U.S. has narrowed its focus and led to significant increases in concentration and market power throughout the economy. This essay proposes several measures to help restore antitrust and thereby restore competition. These are (1) to enforce the Merger Guidelines more strictly, relying to a greater degree on structural criteria to guide enforcement, (2) to utilize the doctrine of potential competition more aggressively, thereby expanding the enforcement range, including in the tech sector, and (3) to sharply limit the use of merger remedies, especially conduct remedies that have been shown too often to be ineffective. It concludes with a plea for greater data disclosure by merging companies and also by the agencies so as to facilitate evaluation of agency merger enforcement.
