Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Recent Working Papers:


Colluding to Go Green: Global Antitrust Institute Comments on the Austrian Federal Competition Authority’s Draft Guidelines to Exempt “Sustainability Agreements”

6-2022 | Alexander Raskovich, Douglas Ginsburg, Bruce Kobayashi, Tad Lipsky, Joshua Wright, John Yun

ABSTRACT:

The Austrian Federal Competition Authority (AFCA) invited comment on its draft guidelines for the exemption of otherwise anticompetitive “sustainability agreements” from condemnation under Austrian competition law. This comment argues that out-of-market efficiencies which are only tenuously related to the relevant market or accrue to “the general public” rather than to participants in the relevant market should not be weighted as much as are direct in-market harms to consumers. The comment then argues that the AFCA should take into account the unilateral incentive effects of tax policy, such as the Austrian Parliament's recent passage of a carbon tax, in assessing whether the claimed environmental gains from a collusive sustainability agreement are specific to the agreement (“indispensable” to achieving those gains). A broad-based tax is a more efficient way to internalize the externalities conceived in the “European Green Deal” than is a collusive agreement whose anticompetitive effects in a relevant market are akin to an excise tax imposed narrowly on consumers in that market.

Securities and Derivatives Central Counterparties in the United States

6-2022 | Paolo Saguato

ABSTRACT:

This chapter offers the US perspective on securities and derivatives central counterparties (CCPs) and focuses on the macro-prudential and financial stability role bestowed on CCPs by post-crisis policymakers. It unpacks the peculiar economic and governance dynamics of clearinghouses and their delicate incentives structure and focuses on the regulatory framework built by post-crisis policymakers. Interestingly, in the United States, the market and regulatory structure of securities and derivatives CCPs substantially differentiate, with securities CCPs organized as subsidiaries of a stand-alone member-owned firm, and derivatives CCPs being vertically integrated in investor-owned for-profit financial groups. The chapter looks at the two different market structures and ownership models of securities and derivatives clearinghouses and draws comparative analyses of the US and EU approaches to the regulation of clearing markets and CCPs. US derivatives investor-owned CCPs, as their EU peers, present unique agency costs between clearinghouses' members and shareholders, where the members are the final risk bearers of the business but without control rights, and the shareholders retain control rights, but with limited skin in the game. The chapter concludes with some policy considerations on how to strengthen CCPs resilience and how to more effectively mitigate the agency costs that spills from the members-shareholder divide.

Financial Market Infrastructures: The International Approach and the Current Challenges

6-2022 | Paolo Saguato, Guido Ferrarini, Eric Pan

ABSTRACT:

This chapter analyses the global initiatives for coordination of financial market infrastructure regulation that have emerged since the 1990s, reflecting on both the European and the American perspectives. It begins by looking at the different approaches that authorities can take in tackling cross-border phenomena. Finding the right balance between securing national interests and engaging in international relationships is a delicate process: in international financial regulation, authorities can claim extraterritorial application of their domestic regime to keep control of the market and minimize the opportunities of regulatory arbitrage; but they can also try to contain opportunities for regulatory arbitrage by engaging in harmonization and coordination with other countries. The chapter then discusses the dynamics of the European Union and United States relationship and the approaches embraced by the two jurisdictions in regulating and overseeing derivatives clearinghouses in the aftermath of the global financial crisis. It also examines Brexit and considers the severe challenges that the decision of the United Kingdom to leave the EU will have to the markets, before offering a snapshot of the challenges that financial technology is posing to the existing delicate cross-border regulatory equilibrium.

Financial Market Infrastructures from a Trans-Atlantic Perspective: Mapping the Issues

6-2022 | Jens-Hinrich Binder, Paolo Saguato

ABSTRACT:

This chapter introduces financial market infrastructures (FMIs), the backbone and the critical providers of essential services to modern financial markets. FMIs have been a central piece to the post-2008 global financial crisis reforms. Yet, despite the critical functions they provide in the financial system, they have been often overlooked by commentators and both the technical design of their regulatory framework and their underlying policy questions, for a long time, have gone under-theorized. Both international standard setters and, indeed, academic research into the legal and economic aspects of FMI regulation have caught up over the past few years. This Chapter provides an overview of the book and of its content.

Rethinking the Financial Stability Oversight Council

6-2022 | Paolo Saguato

ABSTRACT:

New major existential challenges are threatening the U.S. financial system. Climate change, cyber risk, the evolving role of digital assets, and vulnerabilities in nonbank financial intermediation call for prompt collective responses by financial regulators. However, the existing U.S. financial macroprudential regulatory architecture seems not to be up to the task because of “architectural vulnerabilities” that undermine its proper functioning.

The Financial Stability Oversight Council (FSOC) is a multiagency authority created by the Dodd-Frank Act to mitigate systemic risk by coordinating the actions of U.S.financial regulators. It was envisioned as a macroprudential authority to stabilize the financial system. FSOC was given the power to designate systemically important entities and activities and to trigger a novel back-up regulatory and supervisory authority of the Federal Reserve (Fed), what l call the Regulator of Last Resort (ROLR) function.

This Article shows that FSOC, in its current structure, is not up to the challenges facing the U.S. financial system. Offering a novel political economy account to its operations and structure, the Article shows that architectural vulnerabilities in the FSOC design exposes it to political cyclicality—which undermines its operations, deprives the markets of a critical watchdog, and compromises the operation of the Fed as ROLR.

This Article proposes incrementalistic and marginal policy solutions to this problem. Congress should fix the architectural vulnerabilities of the FSOC by adopting a different leadership structure. Building on the comparative experience of the U.K. and the E.U., the Article proposes two alternative options: upgrading the current leadership of the Council to a Co-Chair role of the Fed Chair and the Treasury Secretary; or alternatively, creating a new Systemic Risk Council within the Fed as a novel macroprudential authority.

Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses

6-2022 | Jeremy Rabkin, Craig Lerner

ABSTRACT:

A German court recently convicted a minor Syrian official of abuses committed in Syria’s civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under “universal jurisdiction,” allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged today, this “watershed” produced barely a trickle of consequences. Notably, no former head of state has been prosecuted by another state under this rubric.

Commentators have remarked upon the disappointing results but not offered much to account for them. This Article is the first to address this puzzle by situating “universal jurisdiction,” as a technical doctrine, in the context of its broader impulse, sometimes called “transnational justice”––or previously, “cosmopolitan justice.” The underlying claim is that otherwise rivalrous nation-states can and should affirm a broader commonality in prosecuting offenses universally acknowledged to be crimes against humanity. Although the idea has inspired human rights activists, it has failed to engage prosecutors.

In analyzing the resulting pattern, this Article makes two central claims. First, the recurring failures of transnational justice cannot be explained by the project’s novelty. Centuries ago, the most prominent Enlightenment thinkers endorsed a version of cosmopolitan justice. It was later advocated as a doctrine that might justify interstate prosecutions within the United States. Such doctrines have never been embraced, however, by courts or even by prosecutors.

Second, the failure of cosmopolitan justice is all the more notable when seen against the willingness of states to assert transnational jurisdiction for aims of special importance to the prosecuting state. There is, it seems, something about criminal law that is inherently local or national, bound to the aims and priorities of the political community enforcing it. The actual pattern of criminal justice seems to return, as by moral gravity, to the distinctive claims of particular communities.

Letting Offenders Choose Their Punishment?

6-2022 | Gilles Grolleau, Murat Mungan, Naoufel Mzoughi

ABSTRACT:

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare. We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions. After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

A Regulatory Budget for the Public Company Accounting Oversight Board

6-2022 | J.W. Verret

ABSTRACT:

The Public Company Accounting Standards Board (PCAOB) was created by the Sarbanes–Oxley Act (SOX) in 2002 in response to the Enron and WorldCom auditing scandals. The PCAOB regulates the $20 billion annual auditing industry, which itself provides assurance for the financial integrity of $27 trillion in outstanding global publicly traded equity. The PCAOB is uniquely a quasi-private entity overseen by the Securities and Exchange Commission (SEC), which approves its budget and must approve any changes in its rules. The PCAOB has undertaken initiatives to attenuate the cost–benefit calculus of its rules, most notably in a change from Auditing Standard 2 to Auditing Standard 5, to reduce the compliance costs of auditor attestation of internal controls required by § 404(b) of the SOX. This Article provides the SEC with a regulatory budget rubric, crafted on similar models implemented in the United Kingdom and Canada, to help the SEC fulfill its oversight function over the PCAOB by tracking a regulatory budget for the PCAOB.

Posthumous Pardons

6-2022 | Craig Lerner

ABSTRACT:

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

Comment of 25 Law Professors, Economists, and Former U.S. Government Officials in Response to EU Commission Call for Evidence on Standard-Essential Patents

5-2022 | Adam Mossoff, Jonathan Barnett

ABSTRACT:

This comment by 25 law professors, economists and former United States government officials was submitted to the European Union Commission in response to a “call for evidence” on the licensing, litigation, and remedies of standard-essential patents (SEPs). It details the principal concepts and substantial evidence relating to the constructive role of SEPs in efficiently promoting innovation and structuring commercialization activities in high-tech devices generally and the mobile revolution specifically. It also addresses widespread misunderstandings and misstatements about the commercialization and litigation of SEPs. It broadly makes three points.

First, in contrast to the evidence of the positive role of SEPs in promoting innovation and commercialization in wireless technologies, no published empirical study has found evidence of the predicted marketplace effects of “holdup” or “royalty stacking” theories, such as higher prices, less innovation, and less market competition in smartphones. Second, contrary to claims by some commentators that courts do not issue injunctions for the infringement of SEPs, the comment reviews some representative decisions from the substantial case law in Europe in which SEP owners have requested or obtained injunctions against implementers engaging in holdout tactics. Third, it explains how courts have consistently held that the fair, reasonable, and non-discriminatory (FRAND) commitment by SEP owners does not mandate a “license to all” rule nor that reasonable royalties be calculated according to the “smallest salable, patent practicing unit” (SSPPU) standard. These court decisions are consistent with the economic function and evidence of SEP licensing on FRAND terms.

The mobile revolution has created unparalleled economic and technological growth over the past three decades. So long as courts provide robust enforcement of intellectual property rights, and do not impede the licensing and other contracts predicated on those rights, there is every reason to believe that the mobile market will continue to thrive. The comment concludes with an Appendix listing the substantial, published literature addressing both the success of the SEP-based sector of the global innovation economy and the numerous substantive and methodological flaws in “holdup” and “royalty stacking” theories.

Antitrust Has Forgotten its Coase

5-2022 | John Yun

ABSTRACT:

There is a raging debate within antitrust to determine how to best assess the conduct of digital platforms and tailor the enforcement of antitrust laws to the modern economy. The distinguishing features of digital platforms can make their analysis quite different from conventional, single-sided markets. The Supreme Court’s ruling in Ohio v. American Express (“Amex”) was the first decision to explicitly incorporate features of multisided platforms into antitrust analyses. However, the decision has divided academics and practitioners as to whether the Court properly incorporated platform features into antitrust’s rule of reason framework, which seeks to divide the burden of production between plaintiffs and defendants. Adding fuel to the fire are the lower courts’ interpretation of Amex, including in U.S. v. Sabre, where the district court ruled that only “transactional” platforms compete with other transactional platforms, which effectively short-circuited the competitive analysis. This Article argues that antitrust has forgotten the lessons from Ronald Coase’s work on the nature of the firm. Specifically, categorizing business organizations as “platforms” is insufficient to properly inform the actual competitive effects analysis. Firms organize in various ways to ultimately turn inputs into outputs. Precisely how this process is achieved is relevant to understand a firm’s conduct and incentives, but firm organization alone should not lead to competitive effects conclusions. In light of Coase, this Article reexamines the Court’s Amex decision to put suitable bounds on its precedential value. Additionally, this Article examines several key antitrust cases before and after Amex to assess their fidelity to a Coasian interpretation of platforms.

Sanction Severity Influences Learning About Enforcement Policy: Experimental Evidence

4-2022 | Tim Friehe, Pascal Langenbach, Murat Mungan

ABSTRACT:

The literature on law enforcement often assumes that the updating of beliefs regarding the probability of detection is a process that is independent from the severity of the sanction. We test this presumption experimentally, using a taking game in which the probability of detection may be either high or low according to commonly known priors. Individuals gain information regarding their detection probability from their detection experience in the taking game. Some offenders are punished by a severe sanction, while others are sanctioned only mildly, which causes the detection experience to differ across subjects. Our analysis reveals that the sanction severity influences how individuals update their beliefs about the detection probability, casting doubt on the widely-held presumption that the perceived detection probability and the sanction magnitude are separable.

Letter from Former Government Officials and Academics to Assistant Attorney General Jonathan Kanter on Policy Toward Standard-Essential Patents and FRAND Commitments

4-2022 | Timothy Muris

ABSTRACT:

In 2018, a large group of former antitrust enforcers and scholars wrote to the Assistant Attorney General (AAG) in charge of the Antitrust Division about the Division’s sharp departure from the long-standing, bipartisan consensus regarding standard essential patents and commitments to license on fair, reasonable, and nondiscriminatory (FRAND) terms.

In 2019, the Antitrust Division, together with the U.S. Patent and Trademark Office and National Institute of Standards and Technology, issued a policy statement that reflected the AAG’s out-of-the-mainstream position on these issues. The Division has called for comments on a new statement that is more consistent with patent and antitrust law. A chorus of criticism of these reasonable guidelines has been unleashed. But the fundamental points we made in our 2018 letter still stand.

A similar group of former enforcers and scholars joined the attached letter, which forwards the original letter and explains the need for a return to the previous consensus.

In a nutshell, we urge a return to that long-standing, prior consensus on the proper balance between innovation and competition in the standard-setting context. Enforcement and policy at the interface of antitrust and intellectual property should recognize the utilitarian underpinnings of both areas of law and should also appreciate the importance of protecting against anticompetitive holdup consistent with the general standards concerning the availability of injunctive relief. The letter also responds to the arguments that have been voiced to reject the consensus, finding them inconsistent with the available evidence, law, and sound public policy.

Incorporating Equity Concerns in Regulation

4-2022 | Caroline Cecot, Robert Hahn

ABSTRACT:

U.S. regulatory agencies have been required to consider the equity and distributional impacts of regulations for decades. This paper examines the extent to which such analysis is done and provides recommendations for improving it. We analyze 187 cost-benefit analyses (CBAs) prepared by agencies from October 2003 to January 2021. We find that only two CBAs provided net benefits of a policy for a specific demographic group. Furthermore, only 20 percent of CBAs calculate some benefits by group (typically for demographic groups) and only 19 percent calculate some costs by group (typically for industry groups such as small entities). Overall, the differences between presidential administrations are relatively small compared to the differences between agencies in their performance using our measures of distributional analysis. And virtually no CBAs provide a distributional analysis that could help regulators evaluate whether the regulation, on net, advantages or disadvantages a particular group.

On the Australian Competition & Consumer Commission Digital Platform Services Inquiry's Discussion Paper for Interim Report No. 5: Updating Competition and Consumer Law for Digital Platform Services

4-2022 | Alexander Raskovich, Douglas Ginsburg, Bruce Kobayashi, Tad Lipsky, Joshua Wright, John Yun

ABSTRACT:

The Discussion Paper, intended to guide the ACCC toward the recommendations in the ongoing Digital Platform Services Inquiry, suggests consideration of a wide variety of sweeping changes in Australian competition-law enforcement and the enactment of additional regulations in regard to social media services, online private messaging services, app stores, electronic marketplaces, and other “digital platform services.” These include requirements for data portability, interoperability, sharing and access, and limitations on data use. Other requirements may affect customer dispute-resolution procedures and require increased transparency regarding algorithms, as well as price and terms of service. Finally, the Discussion Paper suggests profound changes in Australian law and procedure involving merger control, including institution of compulsory notification above specified thresholds, reversal of the burden of proof in acquisition matters, lowering the current standard of proof of anticompetitive effect by construing “likely” to mean “a possibility that is not remote,” adoption of structural presumptions in acquisition matters, among other similar changes. The GAI Comment asks the ACCC to follow Australian Government policy in applying cost-benefit analysis to these proposed changes and argues that for the most part the evidence and analysis presented thus far in the Inquiry do not meet the applicable standard required to suggest a need for reform.

Efficiencies in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

4-2922 | Alexander Raskovich, Bruce Kobayashi, Tad Lipsky, Joshua Wright, John Yun

ABSTRACT:

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in connection with their Request for Information on Merger Enforcement (“Merger RFI”). The GAI welcomes the opportunity to provide input on the proposed changes to the Horizontal Merger Guidelines (“HMGs”) based upon its extensive experience and expertise in antitrust law and economics. This particular GAI Comment focuses on Section 14 of the Merger RFI, in which the Agencies pose two questions that go to the heart of the treatment of efficiencies in merger review. First, the Agencies suggest (Merger RFI 14.a) that efficiencies may have no proper role whatsoever in merger review. Second, in case consideration of efficiencies is appropriate, the Agencies ask (Merger RFI 14.c) what degree of certainty should be applied to efficiencies evidence to establish cognizability, and in particular to establish merger-specificity. This Comment explains how efficiencies are integral to an accurate assessment of the competitive effects of a horizontal merger, and that efficiencies evidence should in principle be accorded equal consideration to other factors.

Monopsony and Labor Markets in Merger Review: Global Antitrust Institute Comment of the DOJ-FTC Request for Information on Merger Enforcement

4-2022 | Bruce Kobayashi, Tad Lipsky, Alexander Raskovich, Joshua Wright, John Yun

ABSTRACT:

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in connection with their Request for Information on Merger Enforcement (“Merger RFI”) This comment addresses the questions contained in Section 9 of the RFI related to Monopsony Power and Labor Markets. Our view is that protecting workers, input suppliers, and consumers from the effects of monopsony should be an important goal of antitrust. The effects of classical monopsony result in harm to workers, other input suppliers, and consumers by simultaneously reducing output, decreasing workers’ wages, and increasing prices for consumers. Under the consumer welfare standard, preventing mergers that would likely create the harms generated by the exercise of classical monopsony power should be an important goal of both antitrust law and merger policy.

Based on the existing evidence, an empirically supported basis for the use of differential analyses for labor or for presumptions in labor markets does not clearly exist at this time. Merger enforcement should continue to use careful fact-based economic analysis to guide both enforcement and policy directed at mergers that create market power in input markets. These include the use of merger retrospectives of consummated transactions to identify transactions and underlying conditions where the anticompetitive exercise of market power in labor and other input markets is likely. We also suggest that the DOJ and FTC focus scarce enforcement resources on cases in which a merger generates market power that leads to the effects of classical monopsony, that is, transactions that restrict market output and negatively affect allocative efficiency, and where structural remedies focused on the monopoly in the output market would not alleviate the monopsony/buyer side effects.

Potential and Nascent Competition in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

4-2022 | John Yun, Bruce Kobayashi, Tad Lipsky, Alexander Raskovich, Joshua Wright

ABSTRACT:

This Comment focuses on Section 7: Potential and Nascent Competition of the Department of Justice and Federal Trade Commission's January 18, 2022, Request for Information on Merger Enforcement. Despite information and uncertainty problems with assessing potential and nascent competition, the agencies may still address theories of harm involving potential and nascent competitors. This Comment reviews potential guidance that would facilitate the examination of potential/nascent competition cases by the agencies and courts. In particular, what are the characteristics that agencies and courts should look for in the “nature” of the acquired and acquiring firms? First, there should be greater clarity as to meaning of the terms potential competition and nascent competition—as the law and economics treat these concepts quite differently. Second, the counterfactual exercise involved in potential/nascent competition cases should differ from a standard merger review. Third, analysis of several considerations, including the uniqueness of the acquired assets and business, the innovation pipelines, recent acquisitions by the merging parties, and capabilities, could better forecast the likely competitive environment. This Comment addresses that the strength and quality of the evidence about potential/nascent competition in a relevant market should determine the level of scrutiny of an acquisition.

Presumptions in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

4-2022 | Joshua Wright, Bruce Kobayashi, Tad Lipsky, Alexander Raskovich, John Yun

ABSTRACT:

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in connection with their Request for Information on Merger Enforcement (“Merger RFI”). This comment addresses the questions contained in Section 5 of the RFI related to the use of presumptions in merger enforcement. Our view is that an important objective of the agency’s horizontal merger enforcement guidelines is to ensure that the analytical framework adopted promotes sound antitrust policy. Limiting the use of bright line rules and presumptions to only those supported by economic principles and empirical evidence best achieves this objective. Antitrust agencies should use that evidence to guide decision-making to enforce the antitrust laws to achieve their objectives—that is, to maximize consumer welfare. Presumptions of illegality tend to be appropriate and maximizing welfare for consumers, when economic evidence tells us that the conduct at issue rarely yields any consumer benefits and is likely to cause competitive harm. However, neither economic theory nor the empirical evidence supports the use of concentration-based presumptions of merger illegality and the guidelines should reject them.

Purpose, Harms, and Scope in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

4-2022 | Tad Lipsky, Bruce Kobayashi, Alexander Raskovich, Joshua Wright, John Yun

ABSTRACT:

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in response to their Request for Information on Merger Enforcement. This Comment addresses the questions related to Purpose, Harms and Scope. Our view is that the essential and defining purpose of merger guidelines is to identify and describe how the agencies assess the legality of mergers. Such guidelines help assure reasonable and consistent agency review of mergers, and effectively enable businesses to comply with the law. The agencies’ role in providing clear and accurate guidance is critical in light of both the significant costs of enforcement and compliance, and the enormous variety of mergers subject to review. Flawed or vague agency standards are likely to discourage procompetitive transactions, limit growth and impose substantial costs on the parties.

At present, there is no basis for significant departure from – much less wholesale rejection of – the current guidelines. Those guidelines represent the culmination of more than seventy years of enforcement experience under the current version of Clayton Act Section 7. Since the mid-1970’s trend toward case-by-case analysis informed by sound economics, U.S. economic success and innovation have been unrivaled. Any recommendation for fundamental change in the character of merger analysis would require strong reasons for a profound departure from the present expert consensus. The guidelines’ broad and flexible categories and methods of analysis are properly designed to capture any novel theories of anticompetitive harm and to apply to new and innovative forms of competitive conduct as they arise. As a document intended to describe agency practice, the guidelines should continue to focus on the agencies’ own approach, and on ensuring a careful, fact-based analysis of each case, as informed by sound economics.


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