Potential and Nascent Competition in FTC Merger Enforcement in Health Care Markets

Continuing calls for more vigorous enforcement against mergers and acquisitions by digital technology platforms increasingly focus on deals involving potential and nascent competitors. The FTC has been applying future competition theories in the healthcare sector for years, including litigating the government’s first merger challenge on actual potential competition grounds since the mid-80s. It also challenged mergers under Section 2 “nascent competition” theories, a close cousin of an actual potential competition, in two recent matters. This paper examines Agency’s experience in these cases, highlights some of the differences between the two approaches, and suggests how the FTC may apply this thinking in other contexts, including acquisitions by technology platforms.

By Michael R. Moiseyev¹

I. INTRODUCTION

Popular interest in antitrust has been growing significantly in recent years, fueled in large part by a concern about what (if anything) can or should be done about “big tech.” Critics argue that these companies owe their dominance, at least in part, to “hundreds of mergers,” most of which involve what they term “nascent competitors.”² While acquisitions of future competitors are gaining attention in the technology sector, the FTC has been scrutinizing these types of deals in the healthcare sector for years. Experience with the FTC’s approach to these transactions may provide a roadmap to how the agency may evaluate transactions in othe