The Network Law Review is pleased to present a symposium entitled “The Future of the Neo-Brandeis Movement”, asking experts the following question: will the neo-Brandeis movement have a lasting impact on antitrust law?
This contribution is signed by Jonathan M. Barnett (University of Southern California). The entire symposium is edited by Thibault Schrepel (Vrije Universiteit Amsterdam) and Anouk van der Veer (European University Institute).
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There can be little doubt that antitrust enforcers at the Department of Justice (DOJ) and Federal Trade Commission (FTC), who have adopted to various degrees the “neo-Brandeisian” (NB)—also known as “populist,” “political” or “anti-monopoly”—approach to antitrust policy, have sought under the Biden Administration to make far-reaching changes in how antitrust law is interpreted and enforced.
The NB rubric covers a range of overlapping views concerning the current state of U.S. antitrust law and proposed changes to strengthen it or expand its scope of application.
Generally, advocates of the NB approach identify several purported flaws in existing antitrust doctrine and regulatory guidelines. They argue that existing law and (now-withdrawn) guidelines focus excessively on price and output as indicators of competitive harm, incorrectly prioritize consumer welfare as the primary objective of antitrust law, place undue weight on countervailing efficiencies in assessing the competitive effects of a contested practice, and place excessive weight on avoiding false-positive enforcement errors.[1] In place of this well-established body of case law and regulatory guidelines, NB advocates argue that antitrust law should address a broader range of constituencies, such as workers and small businesses in addition to consumers, reflect redistributive values such as “fairness” rather than efficiency, target even moderate levels of concentration irrespective of countervailing efficiencies, and focus on avoiding false-negative enforcement errors.[2]
This is a bold program to reverse about a half-century of U.S. antitrust case law and an accompanying body of agency guidelines and legal and economic scholarship.
In implementing this ambitious agenda, supporters have been unsuccessful in securing passage of various bills in Congress and have been compelled to rely on the policymaking and enforcement powers of the antitrust agencies. The agencies have done so by undertaking litigations based on unconventional theories of antitrust liability and announcing withdrawals and modifications of agency policy statements and merger review guidelines and practices. (To be clear, some of the agencies’ litigations, or elements of the litigations, against major digital platforms rely on conventional theories of antitrust liability and, therefore, cannot be specifically attributed to the NB approach.) Perhaps most notably, the agencies adopted in 2023 the revised Merger Guidelines, which replace both the previously existing Horizontal Merger Guidelines (adopted in 2010) and the Vertical Merger Guidelines (adopted in 2020).[3] While the final version of the revised Merger Guidelines does not go as far as some advocates for the NB agenda have proposed (for example, it continues to provide a limited scope for considering efficiencies but requires compelling evidence[4]), some features of the Guidelines (for example, a broad understanding of “dominant position” that encompasses extensions to adjacent markets[5], and as discussed subsequently, the emphasis on nascent competition, serial acquisitions, and labor-market effects[6]) reflect concepts that have been promoted by NB-aligned scholars and advocates.
These changes have attracted significant attention and have unsettled expectations concerning the types of practices and transactions that are likely to trigger scrutiny and litigation by antitrust regulators and private plaintiffs. Yet it remains to be seen whether these dramatic changes will exert any lasting impact on U.S. antitrust law. For the most part, these announced changes in agency policy, which are merely declaratory actions without judicial adoption, appear to have made little difference in courts’ decisions, which have the force of law.
This contribution argues that this largely unchanged state of affairs is likely to persist (outside of the merger review context) so long as there is no legislation enacted that embeds NB concepts and principles in binding law. For institutional and substantive reasons, apparently significant changes in antitrust policy to pursue NB objectives are unlikely to translate into practically meaningful changes in antitrust law (specifically, case law) that ultimately impact firm behavior. This assertion is qualified in the merger review context, where agency actions can impact firm behavior even absent a change in binding case law.
The structure of the paper is as follows. In Section 1, I describe how antitrust law changes through an interaction between potentially influential regulatory statements on the one hand (soft law) and binding judicial determinations on the other hand (hard law). In Section 2, I review four areas in which the antitrust agencies have sought to deploy NB-inspired theories of antitrust liability, showing that these efforts have largely failed to convert soft law into binding hard-law outcomes. In Section 3, I discuss why the NB approach has largely failed to make a practically meaningful impact (outside the merger review context) and why, absent legislative intervention, it is unlikely to do so. The discussion is limited to U.S. antitrust law.
- A Simple Model of Legal Change in the Antitrust Context
U.S. antitrust law develops through three principal channels: (1) “hard law” developed by the federal judiciary through the interpretation and application of governing statutes and, far less frequently, new or amended legislation; (2) “soft law” promulgated by the agencies through statements and guidelines; and (3) enforcement actions undertaken by the agencies or private plaintiffs, including agency challenges to merger transactions. Out of these three channels for legal change, only hard law is legally binding and, therefore, has some impact on firm behavior with certainty. Soft law is not legally binding but may have some impact on firm behavior if courts adopt agency statements as influential guidance. The now-withdrawn merger guidelines had exercised significant influence over the courts because the guidelines were generally viewed as a bipartisan effort to reflect existing law rather than a prescriptive attempt to change the law. Enforcement actions may have an impact on firm behavior by increasing the costs and risks of undertaking certain transactions or, more generally, sending a signal about the likelihood of future enforcement action concerning a particular type of practice or transaction.
The informational signal concerning the expected magnitude of any potential shift in antitrust law (in this case, adoption of the NB approach in lieu of existing doctrine) depends both on the extent to which these various channels adopt the newly proposed approach and, in the event of conflicting signals, which channels do so. Since only hard law is legally binding, an informed business party who observes a conflict between hard law and soft law or between hard law and enforcement action will place greater weight on the signal transmitted through the hard law channel. The disparity is likely to be greater when guidelines are adopted that seek to change case law (as in the case of the newly revised merger guidelines), rather than merely codify it (as in the case of the withdrawn merger guidelines). The business party will still place some weight on soft law and enforcement action in the case of a “channel conflict” because agencies or private plaintiffs may bring litigations on contestable grounds if it is expected that legal and related costs may induce a defendant to settle or capitulate.
- The Limited Impact of the Neo-Brandeisian Approach
Following this multi-channel framework, it is expected that informed business parties would observe a relatively weak signal concerning the extent to which NB antitrust principles are displacing conventional antitrust doctrines. This is principally because the NB approach has failed to secure adoption by courts (hard law), although it has secured adoption in agency statements (soft law) and has supported litigations and merger challenges by the agencies. Notwithstanding the failure to penetrate the hard-law channel, the DOJ and FTC wield leverage in merger challenges due to the time-sensitivity of merger transactions (which in turn reflects business considerations and the contractual provisions of acquisition agreements), such that an agency challenge can impact firm behavior even if it relies on a theory of liability that is not well-supported in hard law. In all other contexts, the NB approach has most likely had little impact on business practice, given courts’ unwillingness to adopt unconventional theories of antitrust liability when advanced by the agencies.
To illustrate these tendencies, the following discussion will address selected litigations pursued by the antitrust agencies that rely on unconventional theories of liability that reflect the NB approach. In each case, courts have largely rejected these theories and left the current state of the law intact.
Nascent Acquisitions
It is common for large firms in technology markets to acquire startups and other smaller firms. The business community generally views these transactions as an uncontroversial practice that enables venture capital investors and startup founders to achieve a positive return while enabling larger firms to integrate complementary technologies into an existing platform. However, NB advocates characterize this common practice as a “serial acquisition” strategy to acquire and suppress emerging firms that may pose competitive threats. As I show in a recent publication,[7] this “killer acquisition” theory has little evidentiary basis in real-world settings, with the possible exception of a small segment of the pharmaceutical market. Nonetheless, regulators have adopted this theory in the revised Merger Guidelines[8], which emphasize the risks purportedly posed by incumbents’ acquisition of smaller firms that may constitute “nascent” competitive threats.
In 2022, the FTC relied on this nascent competitor theory in filing a suit to challenge an acquisition by Facebook of Within Unlimited, the developer of a fitness app in the emergent virtual reality (VR) market.[9] The agency argued that the acquisition should be blocked to foreclose the possibility that the acquisition would promote Facebook’s efforts to dominate the VR ecosystem and suppress Facebook’s incentives to develop a competing VR fitness app. Yet there were already multiple other competing apps in the VR fitness market and no apparent barriers to entry by additional providers of new VR fitness apps. Hence, the likelihood that the acquisition of a single fitness app would confer market power on the acquirer in a relevant antitrust market appeared to be both speculative and trivial. Unsurprisingly, the court denied the agency’s petition for a preliminary injunction.[10] Any other outcome may have caused significant harm to startups, which rely on investors’ expectations of an exit by sale to a larger firm in the low probability event that a startup is successful. That is precisely the type of false-positive error cost that NB advocates dismiss as being insignificant.
Vertical Acquisitions
Antitrust case law (and the now-withdrawn Vertical Merger Guidelines) and an accompanying body of scholarship have generally taken the position that the likelihood of harm to competition is significantly lower in the case of a vertical acquisition as compared to a horizontal acquisition. The rationale is straightforward: only a horizontal acquisition clearly impedes direct competition, which supports a presumption of competitive harm in concentrated markets. As a result, the agencies have infrequently contested vertical acquisitions, which typically raise a complex mix of procompetitive and anticompetitive effects. NB advocates argue that vertical acquisitions pose a higher risk to competition than conventional antitrust law and scholarship have recognized. This view is reflected in the revised Merger Guidelines, which, as compared to the withdrawn Vertical Merger Guidelines, emphasizes the risk of foreclosure effects from vertical acquisitions and largely rejects the relevance of countervailing efficiencies without specific evidence of “substantial competitive benefits that could not be achieved without the merger […].”[11]
The critical question is whether courts will adopt these views, which is a necessary precondition to converting soft law into hard law. So far, this does not appear to have occurred, which means that the soft-law signal transmitted by the revised Merger Guidelines concerning the elevated risk to competition posed by vertical acquisitions may have a limited practical impact on firm behavior. Nonetheless, the agency’s soft-law statements may have some impact when the agency challenges a transaction and the merging parties are unwilling to incur the costs, delays, and risks involved in contesting the agency’s challenge.
These considerations can be illustrated by a major vertical acquisition that was challenged by the FTC starting in 2022. Concerning Microsoft’s acquisition of Activision Blizzard for $69 billion, the FTC sought to block the transaction on the ground (among others) that the combined entity would have incentives to deny access to Activision’s popular multi-player video game, “Call to Duty,” to Sony and Nintendo, the two other major competitors in the gaming console and device market.[12] The claim suffered from several weaknesses.
First, it is not clear that Microsoft would rationally elect to foreclose access to the Call of Duty game since it would forfeit substantial licensing revenues by doing so, given that Sony Playstation and Nintendo devices have a larger user base combined than Microsoft Xbox individually. Second, even if Microsoft did undertake this foreclosure strategy, it is not clear that it would ultimately gain any lasting competitive advantage, given competing blockbuster games and the ability of other device makers and developers to develop new games. Third, Microsoft had entered into contractual agreements with Sony, Nintendo, and other device providers and streaming services to provide access to the game for a certain period after the closing of the acquisition. Fourth, Microsoft’s acquisition of Activision would arguably enhance competitive conditions in the gaming device market since Microsoft’s Xbox had a smaller market share compared to Sony Playstation and acquisition of Activision’s games catalog may have facilitated Microsoft’s launch of its cloud-based gaming service.
On some of these grounds, the district court rejected the FTC’s petition to enjoin the transaction.[13] Competition regulators in the EU upheld the transaction, principally on the basis of Microsoft’s commitment to make the Call of Duty game available to competing device makers and streaming services. The approach adopted by the district court and EU regulators is consistent with the conventional approach to vertical acquisitions, which generally assumes that these transactions do not pose competitive risks without economic evidence showing that anticompetitive effects outweigh procompetitive effects reasonably attributable to the transaction. Despite the FTC’s ongoing appeal, the transaction closed in October 2023[14], reflecting a de facto win for conventional antitrust doctrine over the NB approach.
Horizontal Acquisitions and Labor-Market Effects
The antitrust agencies have achieved success when bringing challenges to horizontal acquisitions, such as the DOJ’s challenge in 2022 to the $2.2 billion acquisition of Simon & Schuster by Penguin Books Random House, two of the largest U.S. book publishers. The court ruled that the merger was anticompetitive on the grounds that it would likely confer buying power on the combined firm in the market for publication rights sold by authors of anticipated best-sellers. While the narrow market definition used in the case is debatable, a challenge to a merger of two direct competitors is presumptively uncontroversial under existing antitrust law and, therefore, cannot be attributed to unconventional NB-inspired theories of antitrust liability. Accordingly, it is not surprising that the DOJ prevailed in court.[15]
It might nonetheless be argued that the agency’s successful challenge to the merger reflects judicial openness to the NB view that antitrust law should place greater emphasis on competitive harms in labor markets (rather than focusing primarily on harms to consumers).
Yet conventional antitrust law already recognizes that competitive harms can arise in labor markets. In Todd v. Exxon Corporation[16], a decision by the Second Circuit in 2001, plaintiffs argued that Exxon had sought to coordinate wages for managerial, professional, and technical positions by participating in an information-sharing arrangement with other energy companies through a third-party data provider. Treating the market for managerial, professional, and technical services as the relevant antitrust market, the appellate court reversed the district court’s dismissal on summary judgment. Similarly, in NCAA v. Alston[17], a 2020 decision, the Supreme Court ruled unanimously that the NCAA had violated antitrust law through rules that had unduly limited the ability of student-athletes to negotiate non-cash benefits for education-related purposes from NCAA-member universities. Both decisions illustrate how existing case law can support claims of competitive harms in a labor market, which casts doubt on NB advocates’ arguments that existing doctrine is not amenable to such claims due to the consumer welfare standard.
It is insightful to consider two recent enforcement actions where the antitrust agencies failed or encountered difficulties in challenges to horizontal acquisitions. In both cases, the defendant had committed to an asset divestiture to mitigate potential anticompetitive effects but the agency had rejected or resisted the “structural fix.” In U.S. v. UnitedHealth Group Inc.[18], the DOJ’s rejection of a proposed asset divestiture (a “fix-it-first” mechanism embedded in the deal structure) led to a loss in 2022 at trial, allowing the UnitedHealth-Change Healthcare merger to close. In U.S. v. ASSA ABLOY AB et al., the defendant’s proposed asset divestiture led the DOJ in 2023 to settle[19], the first merger challenge where the DOJ Antitrust Division under current head Jonathan Kanter had agreed to a divestiture-based settlement.
These outcomes run counter to previous statements by the head of the DOJ Antitrust Division and Chair of the FTC that enforcers should reject structural or behavioral fixes to “save” problematic mergers and seek to block those transactions entirely. In 2022, Assistant Attorney General Jonathan Kanter stated that “merger remedies short of blocking a transaction too often miss the market. Complex settlements, whether behavioral or structural, suffer from significant deficiencies.”[20] Given these prior positions, the ultimate outcomes of these two merger challenges arguably reflect the persistent influence of the conventional approach to merger review (to which regulators have tacitly acceded). That approach generally adopts a nuanced balancing approach that weighs the procompetitive and anticompetitive effects attributable to a transaction. Therefore, it is intrinsically amenable to deal with modifications that can preserve the efficiencies attributed to a transaction by excising the elements that raise antitrust concerns.
Private-Equity “Roll-Up” Acquisitions
As noted, the revised Merger Guidelines depart from existing agency guidelines insofar as they sometimes promote changes to antitrust doctrine rather than reflecting and consolidating existing doctrine. An example is “Guideline 11” of the Merger Guidelines, which states that “the Agencies have concerns […] when individual investors hold non-controlling interests in firms that have a competitive relationship […].”[21] This statement reflects views expressed by FTC leadership that the private-equity model of “roll-up” acquisitions, in which a private equity (PE) fund acquires multiple small to medium-sized firms in a particular industry and then consolidate them into a single large company, can constitute an anticompetitive strategy to secure market power. This departs from standard understandings in the business community, which views roll-up strategies as an efficient mechanism to achieve scale economies and operational synergies that enhance firm value.
In FTC v. U.S. Anesthesia Partners, Inc.[22], the FTC advanced this theory against a PE fund that had acquired indirect minority ownership positions in multiple anesthesiology practices in Texas on the ground that the fund had allegedly worked with its portfolio company (the direct acquirer) “to drive profits by consolidating Texas’ hospital anesthesia market,” which purportedly constituted a “scheme to suppress competition.”[23] In 2024, the district court dismissed[24]the suit on the ground that the agency had failed to provide a legal basis for holding a minority investor liable for alleged antitrust violations by a portfolio company (against which the suit was not dismissed) over which it did not exercise control. This is a clear example in which an agency’s soft-law innovation failed to secure adoption by the judiciary, which placed no weight on the revised Merger Guidelines when they departed from existing case law.
- Why the Antitrust Revolution Is Unlikely to Launch
The failure of current leadership at the antitrust agencies to convert soft law and enforcement actions into hard law suggests that the NB approach has not yet made a meaningful practical impact outside the merger review context. Informed business parties are likely aware of the distinction between hard law and soft law and, as such, are unlikely to change business practice in response to regulatory statements that depart from governing case law or “creative” theories of antitrust liability that fail when tested in court. It remains to be considered whether the antitrust revolution pursued by current antitrust regulators (and like-minded commentators and advocates in the scholarly and policy communities) is nonetheless likely to have a practical impact over a longer period. Even assuming that there is no enactment of proposed antitrust legislation that reflects the NB approach, this outcome could arise if courts exhibited a willingness to adopt NB concepts in implementing existing statutes.
While this exercise is inherently speculative, there are several reasons to believe that the changes in antitrust enforcement sought by NB advocates, as reflected in soft-law statements and enforcement actions by regulators, are unlikely to translate into hard-law judicial decisions that would have a lasting impact outside the merger review context. Moreover, even in the merger review context, agencies’ leverage may decline if transacting parties successfully resist agency challenges in court (as occurred when Facebook successfully resisted the FTC’s challenge to its acquisition of Within Unlimited and Microsoft successfully resisted the FTC’s challenge to its acquisition of Activision Blizzard).
U.S. Supreme Court
There is no indication of the Supreme Court showing any willingness to deviate from the core antitrust principles targeted by NB advocates. In the Court’s landmark 2018 decision in Ohio v. American Express Co.[25], the Court exhibited a steadfast commitment to the rule-of-reason framework that NB-aligned commentators and regulators associate with an excessive focus on economic analysis and the avoidance of false-positive enforcement errors. Since the Court’s landmark decisions in Continental, T.V. v. GTE Sylvania in 1977[26] and Broadcast Music v. CBS in 1979[27] and again in California Dental Association v. FTC in 1999[28] (among other decisions), the Court has held that the rule of reason test applies in some form to all antitrust causes of action except in the clearest cases of explicit collusion bereft of any pro-competitive purpose.
In the American Express decision, the Court reaffirmed and arguably bolstered this commitment to the rule of reason. Specifically, the Court held that, in the case of a two-sided transactional platform, it is necessary to assess the net competitive effects of a contested practice on each side of the platform and then weigh those effects against each other to reach an aggregate assessment across the platform as a whole. This complex multi-step approach increases the difficulty of bringing antitrust litigations against firms that operate multi-sided transactional platforms and is consistent with the case law’s focus on deploying a factually intensive rule-of-reason analysis to avoid false-positive enforcement errors.
The consistent trajectory of Supreme Court rulings concerning rule-of-reason analysis largely forecloses the possibility that lower courts would adopt the views of NB-aligned commentators and regulators who have praised the frequent use of per se liability rules in pre-Sylvania case law.
Rule-of-Law Barriers
Even assuming a change in the Supreme Court’s composition, it is unlikely that the federal judiciary would be inclined to adopt the NB approach. Unlike the Chicago School approach that scholars had developed for approximately two decades prior to adoption by the Court and antitrust agencies starting in the late 1970s and early 1980s, the NB approach, as set forth in a far less developed body of scholarly publications, advocacy commentary, and regulatory statements, has yet to provide a practically implementable model that is reasonably consistent with the values associated with the rule of law. The NB approach proposes to expand the purposes of antitrust law to encompass a fluid range of policy goals that extend beyond consumer welfare, including but not limited to the interests of small businesses and workers, casts doubt on the use of economic analysis to assess the efficiency effects attributable to a contested practice, rejects a focus on price and output as measures of competitive effects, and argues that antitrust law should promote amorphous objectives such as “fairness” that are challenging to define or assess objectively.
These elements are difficult to reconcile with the principles of coherence, transparency, and predictability associated with the rule of law. In particular, judges would be compelled to weigh the allegedly “fair” or “unfair” effects of a particular practice on a wide range of constituencies without an objective analytical framework for assessing those effects or weighing those effects against each other. By contrast, existing case law (and now-withdrawn agency guidelines) seeks to reconcile the antitrust statutes’ opaque prohibitions of “restraints of trade” and “monopolization” with the rule of law by anchoring judicial reasoning in the consumer welfare standard[29] and the concomitant requirement to demonstrate antitrust harm.[30] Moreover, outside of a limited set of per se offenses, case law requires that courts undertake a fact-dependent balancing of the procompetitive and anticompetitive effects attributable to a contested practice, with extensive reliance on economic analysis. In short, regulators that favor the NB antitrust approach (at least in its currently articulated form) will likely struggle to secure adoption by a federal judiciary committed to rule-of-law principles and evidence-based adjudication of antitrust claims.
Section 5 Detour?
It may be objected that the FTC can detour around this case-law barrier through Section 5 of the FTC Act, which empowers the agency to take action against “unfair methods of competition.”[31] As the FTC had recognized in a 2015 statement, this provision has generally been interpreted as authorizing the FTC to pursue largely the same offenses that would trigger liability under the Sherman Act or Clayton Act, with some latitude to pursue offenses that violate the “spirit” of the antitrust laws.[32] In a statement adopted by three of the five Commissioners, the FTC in 2022 vigorously rejected this view, stating that Section 5 encompasses a broad range of practices beyond the scope of the Sherman Act and Clayton Act, including conduct that harms consumers, workers, and an undefined group of “other market participants,” and allocated to the Commission broad discretion to determine which practices constitute “unfair” methods of competition.[33]
Yet it is unlikely that courts will uphold this broad understanding of Section 5. This is for two reasons.
First, this understanding of the statute would confer almost unlimited discretion on regulators to pursue practices deemed to be “unfair,” which would appear to be inconsistent with the rule of law and separation of powers principles. As the Second Circuit observed in a 1984 decision, an overly broad understanding of the FTC’s stand-alone Section 5 authority would “permit arbitrary or undue government interference with the reasonable freedom of action that has marked our country’s competitive system.”[34] Second, a sequence of at least five recent decisions by the Supreme Court has held that, in cases in which there is some doubt concerning the scope of authority of an administrative agency (including decisions involving the Securities & Exchange Commission[35], the Occupational Safety & Health Administration[36], the Environmental Protection Agency[37], and the Patent & Trademark Office[38]), any such authority will be construed narrowly absent specific congressional instruction. In one of these decisions, the Court barred the FTC from seeking disgorgement remedies as a form of equitable monetary relief under the FTC Act on the ground that the statute did not specifically provide for such a remedy.[39] The agency’s unilateral extension of its Section 5 authority is likely to meet the same fate.
Conclusion
Current leadership at the antitrust agencies has sought to implement the NB approach to antitrust law and policy through various avenues. If successful, this initiative would discard most of the fundamental elements of current U.S. antitrust law, as it has been interpreted and applied by courts for at least half a century.
So far, the declared antitrust revolution has been mostly theatre and little substance. The NB approach has been deployed principally in the form of agency statements and enforcement actions, which have generally not been translated into hard-law precedents that would impact firm behavior. The only exception to this tendency is in the merger review context, in which the agencies’ soft-law statements and enforcement actions have suppressed (and probably deterred) certain acquisitions due to the time-sensitivity of these transactions. Absent legislation, there is little reason to believe that the agencies will be able to secure the adoption of the NB approach in binding case law, even over the longer term, given the inherent incompatibility of the NB approach with rule-of-law principles. To be clear, this does not mean that the agencies or other governmental and private plaintiffs may not secure significant wins in the pending antitrust litigations against leading digital platforms. However, if courts rule in the plaintiffs’ favor in those litigations, they will likely rely on the conventional antitrust doctrines that NB advocates reject.
Jonathan M. Barnett
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Citation: Jonathan M. Barnett, The Antitrust Revolution That Mostly Wasn’t and Probably Won’t Be, Future of Neo-Brandeis Movement (ed. Thibault Schrepel & Anouk van der Veer), Network Law Review, Summer 2024.
[1] For leading contributions, see Tim Wu, The Curse of Bigness: Antitrust in the New Guilded Age (2018); Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018); Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents, 11 Harv. L. & Pol’y Rev. 235 (2017); Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017).
[2] See supra note 1.
[3] U.S. Dept. of Justice & Fed. Trade Comm., Merger Guidelines (2023); U.S. Dept. of Justice & Fed. Trade Comm., Vertical Merger Guidelines (2020); U.S. Dept. of Justice & Fed. Trade Comm., Horizontal Merger Guidelines (2010).
[4] Merger Guidelines (2023), supra note 3, at § 3.3.
[5] Id. at § 2.6.
[6] Id. at §§ 2.4, 2.8, 2.10, 4.3.B, 4.3.D.8.
[7] Jonathan M. Barnett, “Killer Acquisitions” Reexamined: Economic Hyperbole in the Age of Populist Antitrust, 3 U. Chicago Bus. L. Rev. 39 (2024).
[8] Merger Guidelines (2023), supra note 3, at § 2.6.A.
[9] Complaint, Fed. Trade Comm. v. Meta Platforms, Inc., No. 3:22-cv-04325 (N.D. Cal. July 27, 2022).
[10] Fed. Trade Comm. v. Meta Platforms, Inc., No. 5:22-cv-04325-EJD (N.D. Cal. Jan. 31, 2023).
[11] Merger Guidelines (2023), supra note 3, at § 3.3.
[12] Complaint, In the Matter of Microsoft Corp. and Activision Blizzard, No. 9412, United States of America Before the Fed. Trade Comm. (Dec. 8, 2022).
[13] District Court denies FTC’s bid to halt Microsoft/Activision deal, Davis Polk (July 12, 2023), https://www.davispolk.com/insights/client-update/district-court-denies-ftcs-bid-halt-microsoftactivision-deal.
[14] Kellen Browning & David McCabe, Microsoft Closes $69 Billion Activision Deal, Overcoming Regulators’ Objections, N.Y. Times (Oct. 13, 2023).
[15] U.S. v. Bertelsmann SE & CO. KGaA, No. 21-2886-FYP (D.D.C. Nov. 7, 2022).
[16] Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001).
[17] NCAA v. Alston, 594 U.S. (2021).
[18] U.S. v. UnitedHealth Group Inc., No. 1:22-cv-0481-CJN (D.D.C. Sept. 21, 2022).
[19] Press Release, Dep’t of Justice., Justice Department Reaches Settlement in Suit to Block ASSA ABLOY’s Proposed Acquisition of Spectrum Brands’ Hardware and Home Improvement Division (May 5, 2023), https://www.justice.gov/opa/pr/justice-department-reaches-settlement-suit-block-assa-abloy-s-proposed-acquisition-spectrum.
[20] Jonathan Kanter, Assistant Attorney General, Remarks to the N.Y. State Bar Association Antitrust Section (Jan. 24, 2022), https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york.
[21] Merger Guidelines (2023), supra note 3, at 28.
[22] Complaint, Fed. Trade Comm. v. U.S. Anesthesia Partners, Inc., No. 2010031 (S.D. Tex Sept. 21, 2023)
[23] Press Release, Fed. Trade Comm., FTC Challenges Private Equity Firm’s Scheme to Suppress Competition in Anesthesiology Practices Across Texas (Sept 21, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-challenges-private-equity-firms-scheme-suppress-competition-anesthesiology-practices-across.
[24] Fed. Trade Comm. v. U.S. Anesthesia Partners, Inc., No. 4:23-cv-03560 (S.D. Tex. May 13, 2024).
[25] Ohio v. American Express Co., 585 U.S. (2018).
[26] Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977).
[27] Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979).
[28] California Dental Assn. v. FTC, 526 U.S. 756 (1999).
[29] Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979)
[30] Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977).
[31] 15 U.S.C. § 45(a)(1).
[32] Fed. Trade Comm’n, Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (Aug. 13, 2015).
[33] Fed. Trade Comm., Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act (Nov. 10, 2022).
[34] E.I. Du Pont De Nemours & Co. v. FTC, 729 F. 2d 128 (2d Cir. 1984).
[35] Axon Enterprise, Inc. v. FTC, No. 21-86 (U.S. Sup. Ct., Apr. 14, 2023).
[36] Natl. Fed. of Independent Business et al. v. Dep’t of Labor et al., 595 U.S. (2022).
[37] West Virginia v. EPA, 597 U.S. 697 (2022).
[38] SAS Institute. Inc. v. Iancu, 584 U.S. (2018).
[39] AMG Capital Mgmt. v. FTC, 593 U.S. (2021).
