Realigning Merger Remedies with the Goals of Antitrust

Introduction

The current focus on antitrust enforcement is supported by an important dialogue on evidence of declining competition in the US economy.[2] We do not yet know the full extent to which rising concentration, slowing rates of start-ups and widening inequality gaps are the product of the lax antitrust enforcement that has prevailed in the United States for three decades. However, as this story continues to sharpen, it remains clear that vigorous merger enforcement should be high on the antitrust agenda. The US Department of Justice Antitrust Division (DOJ or Antitrust Division) and Federal Trade Commission (FTC) are in unique positions to learn from their past experience in merger enforcement, particularly with regard to the effectiveness of their remedies. This commentary highlights the importance of merger remedies in the broader debate about the goals of antitrust in protecting competition, consumers and workers, but its practical implications speak to the invigoration of merger enforcement after decades of laxity, driven by error-cost analysis, or erroneously assigning higher risk to challenging pro-competitive mergers and lower risk to not challenging ultimately harmful ones.[3] Several themes arise from analysis of merger remedies.

This chapter identifies several themes around merger remedies. One is the alignment of remedies policy with the mission and workings of antitrust as a mechanism of law enforcement, namely through effective remedies that deter future anticompetitive conduct.[4] A second theme is the continuing shift in agency policy on structural and conduct remedies, as revealed by changing guidance, the implications of agency self-studies, a growing body of merger retrospectives and even agency enforcement actions involving past, failed remedies. A third theme emerges in the lessons from cases in which the agencies moved to enjoin a merger because a more effective remedy could not be found. These lessons are powerful, but a look at historical enforcement data in the United States reveals a troubling, weakening trend in this regard. A final theme emerges from growing evidence on failed remedies and its implications for policy at a time when the role of antitrust enforcement is critical in addressing competition problems in the US economy.

Aligning merger remedies with the goals of antitrust

The importance of deterrence

The antitrust agencies enforce the antitrust laws through a process of discovery, investigation and deterrence of violations. The agencies have a number of remedies at hand, including injunctions and disgorgement in civil cases, fines and incarceration in criminal cases brought by the DOJ, and civil penalties for decree violations. Enforcement against anticompetitive agreements (e.g., cartels) through Section 1 of the Sherman Act is perhaps the best illustration of antitrust as law enforcement, where the optimal deterrence value of penalties is a central focus.

A small but important case illustrates the concept of antitrust as law enforcement. The DOJ’s settlement in Gunnison Energy and SG Interests Inc levied minimal damages on two companies for rigging bids for natural gas leases on public land in Colorado. Dozens of public comments highlighted the inadequacy of the penalty. Judge Matsch agreed. He denied a motion for entry of a final judgment under the Antitrust Policies and Procedures Act (referred to as the Tunney Act),[5] noting: ‘There is no basis for saying that the approval of these settlements would act as a deterrence [sic] to these defendants and others in the industry.’[6]

The role of antitrust enforcement in deterring anticompetitive behaviour maps directly over to merger remedies, at least as to ‘specific deterrence’ or deterring future violations by a defendant.[7] For example, the DOJ’s 2020 Merger Remedies Manual (the 2020 Remedies Manual), which supersedes both the 2004 and 2011 versions of the Policy Guide to Merger Remedies,[8] explains: ‘Preserving competition is the “key to the whole question of an antitrust remedy,” and preserving competition is the only appropriate goal with respect to crafting merger remedies.’[9] The 2020 Remedies Manual further states that preserving competition, which includes the concept of restoring competition ‘requires replacing the competitive intensity that would be lost as a result of the merger’.[10] In this context, a remedy that preserves competition, restores competition and replaces competitive intensity would preclude the ability and incentive for a market participant to exercise market power. Thus, competition is itself the greatest deterrent to anticompetitive conduct.

The 2020 Remedies Manual makes clear, as has previous guidance, that seeking a full stop injunction to prevent a merger from being consummated is a form of relief for a transaction that violates Section 7, as are modifications such as structural or conduct remedies in cases where the parties want to avoid litigation.[11] However, the 2020 Remedies Manual articulates, for the first time, principles for remedies that support strong deterrence value. These include avoiding remedies that create ongoing regulation of a market, impart only temporary relief, place the risk of failure on consumers and are unenforceable.[12] This approach is consistent with antitrust as law enforcement. However, major differences among merger remedies, in theory and in practice, raise questions about whether they align closely with antitrust’s goal of deterrence.

For example, evidence of ‘misalignment’ between the goals of antitrust and merger remedies continues to be revealed after the fact – in the markets in which merger defendants operate, post-consummation. Until merger policy more rapidly and effectively incorporates this type of evidence, there remains no first ‘line of defense’ to protect competition and consumers from failed merger remedies. The judicial review process under the Tunney Act, which requires that entry of a consent judgment be deemed in the public interest, is neither reliable nor consistent for this purpose.[13] Federal judges have expressed reservations about the deterrence value of remedies in only a limited number of cases, otherwise routinely approving consent orders. Effective remedies that deter anticompetitive conduct should therefore be considered a major policy goal, as noted by former Assistant Attorney General for the Antitrust Division, William Baer: ‘Getting remedies right is central to merger enforcement policy.’[14]

Shifts in agency policy

The pervasive tension between structural and conduct remedies

The US antitrust agencies’ policies governing how merger remedies achieve the goals of antitrust have changed over time. This reflects a continuing tension in the balancing of theory and practice. For example, the Antitrust Division’s 2004 remedies guidelines stated that structural remedies were preferred to behavioural fixes: ‘They [structural remedies] are relatively clean and certain, and generally avoid costly government entanglement in the market. A carefully crafted divestiture decree is “simple, relatively easy to administer, and sure” to preserve competition.’[15] Between 2009 and 2011, however, the DOJ challenged a number of high-profile vertical merger cases and largely settled them with conduct remedies, including in Comcast/NBCU, Live Nation/Ticketmaster and Google/ITA.[16]

In 2011, the Antitrust Division rewrote the remedies guidelines to put less emphasis on structural remedies and more emphasis on conduct remedies. Presumably this codified the DOJ’s approach to vertical merger enforcement at the time, which gave considerable deference to efficiencies claims arising from vertical integration. But the 2011 remedies guidelines awkwardly walked a line between promoting effective remedies and accommodating efficiencies claims. They noted, for example, that merger-related efficiencies are of secondary importance to restoring competition, while at the same time explaining that a remedy ‘preserve[s] the efficiencies created by a merger, to the extent possible, without compromising the benefits that result from maintaining competitive markets’.[17] In 2018, the Trump administration’s Antitrust Division withdrew the 2011 remedies guidelines as a part of modernising the merger review process and ultimately produced the 2020 Remedies Manual.

A major motivation for withdrawal of the 2011 remedies guidelines was their permissive approach to conduct remedies.[18] Indeed, as the 2020 Remedies Manual indicates, conduct remedies in effect:

regulate the merged firm’s post-merger business conduct or pricing authority, . . . substitute central decision making for the free market, . . . require the merged firm to ignore the profit-maximizing incentives inherent in its integrated structure, . . . are typically are difficult to craft and enforce, . . . [and] are inappropriate except in very narrow circumstances.[19]

As the DOJ’s many policy shifts have proceeded, the agencies’ track record on effective remedies remains murky.

Conduct remedies are oriented around a ‘design’ standard, namely compliance with the requirements of the remedy. This stands in stark contrast to structural remedies that are shaped around a ‘performance’ standard or an ‘obligation in terms of ultimate goals that must be achieved’.[20] The implications of this contrast for the deterrence value of merger remedies are clear.[21] For example, conduct remedies articulate prohibited, permitted and required conduct – requirements that do nothing to change the merged firm’s incentives to exercise market power and encourage circumvention of the rules. Conduct remedies also depend on smaller market participants, under the weak protection of anti-retaliation provisions, coming forth to lodge complaints about non-compliance. Conduct remedies thus require continuing monitoring and enforcement by the agencies and the courts, which are not well suited to act as regulators. Conduct remedies also carry a higher risk of failure, a risk that is more likely to be shouldered by consumers, not the merging parties.[22]

The Tunney Act review in Comcast/NBCU illustrates most of the foregoing concerns. There, Judge Leon expressed misgivings about the effectiveness of the proposed behavioural remedy, stating that ‘because of the way the Final Judgment is structured, the Government’s ability to “enforce” the Final Judgment, and, frankly, this Court’s ability to oversee it, are, to say the least, limited’.[23] Judge Leon went on to say that ‘the Government, at the public hearing, freely admitted that “[w]e can’t enforce this decree”.’[24] In the ABInBev/Miller Coors merger, numerous parties filed amicus briefs as part of the Tunney Act review process.[25] They emphasised the drawbacks of the conduct remedy in the consent order, which is designed to constrain ABInBev/Miller Coors’ powerful incentives to favour the distribution of its own products over smaller rivals.[26] These cases reflect the concern that an unenforceable or hard-to-monitor consent order has questionable deterrence value.

The government’s experience also emphasises the risk that complex merger remedies will not be executed successfully, therefore reducing deterrence value. In complex cases, for example, a potential buyer will likely inherit a diverse package of assets involving a combination of research and development, manufacturing and distribution from players that are deeply entrenched in the market. Structural remedies in these cases may be accompanied by conduct remedies, including limited-term supply agreements and licensing and access provisions to ensure that the buyer has continued access to technology or distribution controlled by the merged company. Managers of the merged company must therefore integrate business ecosystems while spinning off divested assets and delivering on promised efficiencies. Completing these tasks presses on the bounds of managerial capability. At the same time they create significant changes that are likely to affect profit incentives, relationships between affiliates and other key operational factors.

Recent large mergers illustrate the significant execution risk associated with complex remedies, including the Monsanto/Bayer merger, which involved the largest dollar-value remedy ever taken by a US agency.[27] In the merger of wireless carriers Sprint and T-Mobile, the DOJ took a remedy rather than blocking a harmful 4-3 merger, settling on a complex package of divestitures and behavioural access requirements, to be handed off to a satellite television provider, Dish Network, with no experience in the wireless markets.[28]

Putting merger enforcement action to the test

Injunctions versus consent orders

In the mid-2010s, the Obama FTC and DOJ completed a remarkable ‘streak’ of successfully blocking or forcing the abandonment of several large, presumptively illegal mergers. These deals included Staples/Office Depot, Sysco/US Foods, John Deere/Precision Planting, GE/Electrolux, Applied Materials/Tokyo Electron, Halliburton/Baker Hughes and Anthem/Cigna.[29] All involved highly concentrated markets and poor, if any, prospects for new entry. Had there been any doubt that the most effective remedy in these cases was a full stop injunction, the absence of viable buyers of potential divestiture assets eliminated it completely.

For example, in the Sysco/US Foods, Staples/Office Depot and Halliburton/Baker Hughes transactions, viable buyers of possible divestiture assets did not exist. Divesting assets to rival market incumbents in these cases would have shifted market share from one entrenched player to another, risking even higher, post-merger levels of concentration and loss of competitive intensity. Divestitures to a potential market entrant more effectively dilute higher market concentration or tighter vertical integration that follows large horizontal and vertical mergers, respectively. However, such a buyer would need to function independently, successfully maintain the assets and quickly reinject the competition lost by the merger and would be difficult, if not impossible, to find in highly concentrated markets.

Since then, the Antitrust Division has successfully moved to block several more major deals that violated Section 7. These include the merger of Aon and Willis Towers Watson, a 3-2 merger of the largest global insurance brokers, and Cengage and McGraw Hill, another highly concentrative, presumptively illegal 3-2 merger in the US textbook publication market.[30] The DOJ also sued to block Visa Inc’s acquisition of Plaid Inc, which would have eliminated the latter’s payments platform, which could eventually challenge Visa’s monopoly in online debit services.[31] The outcome in the first merger is pending, while the latter two transactions were abandoned in the face of government opposition. Despite several successes in enjoining illegal mergers, it is important to note that these cases represent only a small fraction of total merger transactions. Public agencies are subject to significant resource constraints, not only in screening reportable transactions, but in litigating challenged mergers that potentially violate Section 7. In light of these factors, particularly in an era of rising concern about concentration and declining competition, it makes sense to take a broader look at historical enforcement data for possible insights.

For example, only a small fraction of mergers are reportable to the federal antitrust agencies under the Hart-Scott-Rodino Act.[32] Of those that are cleared to the DOJ or FTC for a closer look, the majority receive early termination because they raise no competitive issues. A small proportion of merger trans­actions receive a second request for further information that will aid an agency in making a competitive assessment. This rate has averaged, as a percentage of total clearances, about 20 per cent between 1993 and 2019.[33] However, that rate has trended downwards from 1993 to 2019, indicating that the agencies are scrutinising fewer deals over time. Enforcement statistics reveal that even fewer transactions are challenged by the agencies under Section 7. Merger challenges fall into two major categories: those that are settled by consent decree containing remedies, filed simultaneously with a complaint; and those that are abandoned or restructured in response to an agencies’ signal that it intends to seek a preliminary injunction, or that are litigated. The rate of challenges has averaged, as a percentage of total clearances, about 15 per cent from 1993 to 2019.[34]

Further unpacking this statistic reveals that the agencies rely more heavily on remedying harmful, challenged mergers than they do on seeking to enjoin them. During the period 1993–2019, the percentage of challenged merger transactions that resulted in a consent decree was almost 20 per cent higher than deals that were abandoned, restructured or litigated in response to government opposition.[35] Moreover, cases settled with consent decrees increased at a higher rate than challenges that the agencies did not settle. In addition to settling more challenged mergers, therefore, the agencies are increasingly resolving them with remedies, rather than moving to block them. This ‘weakening’ of merger enforcement has direct implications for merger enforcement and its central goal of ‘getting remedies right’.

Ongoing challenges

Growing evidence on failed remedies and ineffective remedies

As progressive antitrust advocates and observers monitor agency enforcement actions for better alignment of merger remedies with the deterrence goals of antitrust enforcement, another important trend is emerging – growing evidence on failed remedies. For example, in the merger of retail grocers Safeway and Albertsons, the FTC-approved sale of almost 150 stores to a regional west coast grocer (Haggen) led to the failure and shuttering of the divested stores only a few months later.[36] In Hertz/Dollar Thrifty, the buyer of the divested assets (Advantage Rent-a-Car) filed for bankruptcy soon after the sale.[37] And despite divestitures in the UnitedHealth/Sierra and Aetna/Prudential mergers, analysts have documented post-merger premium increases.[38]

Lawmakers have not been shy about pointing out failed remedies. At a 2017 Senate Judiciary Committee hearing on the consumer welfare standard, for example, Senator Richard Blumenthal raised concerns about the Comcast/NBCU consent order and suggested reopening the investigation to consider extending the behavioural conditions or perhaps unwinding the transaction.[39] Senator Blumenthal’s statement highlights the importance of agency learning as a vital component of rebalancing the goals and effectiveness of merger remedies. Evidence on merger remedies comes from a number of sources. Merger retrospectives, or studies of post-merger outcomes, are performed with more frequency.[40] They demonstrate that, in many cases, consummated mergers have harmed consumer welfare through higher prices. Empirical ‘meta-analysis’ of a large number of merger retrospectives also demonstrates that divestitures often fail to resolve competitive problems.[41] The FTC has also conducted two major studies of its divestiture remedies – one in 1999 and another in 2017.[42] The latter study revealed important observations, including that targeted asset divestitures are much less effective than line-of-business divestitures.[43]

It remains to be seen if and how the results of agency studies, merger retrospectives and the agencies’ own post-merger investigations will be incorporated into future enforcement decisions. In early 2020, for example, the DOJ moved to amend the original consent order in the Live Nation/Ticketmaster merger, which included prohibitions on anticompetitive conduct and retaliation against concert venue owners.[44] A DOJ investigation revealed persistent violations of the decree since it came into effect in 2010, in the form of threats, conditions and retaliation designed to force venue operators into contracting with Ticketmaster as their primary ticketing service.[45] Rather than pursuing a more effective structural remedy, however, the Antitrust Division only sought to extend the original decree that the company had ably violated for the past decade.

The persistent use of firewalls by the FTC in vertical mergers is also troubling. Firewalls are a behavioural remedy designed to prevent the exchange of competitively sensitive information – typically between vertical integrated divisions of a merged company – that enhances incentives to foreclose rivals. However, firewalls do nothing to reduce a firm’s incentive to exercise market power, thus creating strong incentives to ‘work around’ the firewall. Moreover, violations of a firewall are difficult to detect without ongoing monitoring of the merged firm’s internal operations. Nonetheless, the FTC approved the merger of Staples, the largest vertically integrated US reseller of office products, and Essendant, the largest US wholesale distributor of office products, subject to a firewall requirement to restrict Staples’ access to the Essendant’s customers’ information.[46] Despite outside criticism of the remedy, the FTC again required conduct remedies, including a firewall and other non-discriminatory access conditions, in the merger of Northrup Grumman’s acquisition of Orbital ATK Inc.[47] The merger would have combined one of the four providers of missile systems to the US government with the leading supplier of solid rocket motors, or missile propulsion systems.

Finally, the FTC’s policy on pharmaceutical mergers bears mentioning because of the agency’s unique approach of settling virtually all challenged trans­actions with consent orders requiring divestitures. Analysis of the nearly 70 pharmaceutical mergers challenged by the FTC between 1994 and 2020 reveals that a relatively small group of drug manufacturers have been involved in a significant proportion of M&A activity and purchases of divestiture assets.[48] Moreover, many of the very firms that were the most active in these areas have been named as defendants in private, state and federal non-merger antitrust litigations and in federal criminal indictments. Accumulating lawsuits are strong evidence that the FTC’s policy has created market conditions conducive to the exercise of market power by dominant firms and tight oligopolies. This outcome is supported by the agencies’ own study, showing that divestitures in generic pharmaceutic mergers are highly ineffective.[49] In sum, the cases referenced in this section highlight the challenges in crafting effective merger remedies. Considered in light of two decades of shifting policy and a trend away from enjoining challenged mergers, these concerns should remain a top priority in merger enforcement.

Conclusion

This chapter takes on the question of merger remedies at a time when concerns about declining competition in the United States have intensified the debate about the role of antitrust enforcement. The analysis recognises the importance of antitrust as law enforcement. By extension, effective merger remedies should achieve the goals of law enforcement by fully restoring competition and deterring future anticompetitive post-merger conduct. A growing body of evidence points in the direction of needed clarity in remedies policy and faster incorporation of agency learning into enforcement decisions. This will come from a combination of factors: strong, progressive agency leadership, coherent merger policy that is rooted in combatting rising concentration, and sufficient resources that will enable the agencies to resist pressures to settle and go to court, if necessary.


Notes

1 Diana L Moss is president of the American Antitrust Institute. This chapter was written prior to the release of the Department of Justice’s new Merger Remedies Guidelines. An updated version of the chapter will be available online.

2 See ‘A National Competition Policy: Unpacking the Problem of Declining Competition and Setting Priorities Moving Forward’, American Antitrust Institute (28 September 2016), http://www.antitrustinstitute.org/wp-content/uploads/2018/08/AAINatlCompPolicy-1.pdf. See also Council of Economic Advisers, ‘Benefits of Competition and Indicators of Market Power’ (April 2016), https://obamawhitehouse.archives.gov/sites/default/files/page/files/20160414_cea_competition_issue_brief.pdf.

3 Jonathan B. Baker, ‘Taking the Error Out of “Error Cost” Analysis: What’s Wrong with Antitrust’s Right’, 80 Antirust L. J. 1, 2 (2015).

4 For a full discussion of using merger remedies to promote general deterrence, see Steven C Salop, ‘Merger Settlement and Enforcement Policy for Optimal Deterrence and Maximum Welfare’, 81 Fordham L Rev 2647 (2013).

5 15 USC Section 16(e)(1) (2018).

6 United States v. SG Interests I Ltd, No. 12-cv-00395-RPM, 2012 WL 6196131, at *6 (D. Colo. 12 December 2012).

7 See footnote 4, above.

8 US Dep’t of Justice, Antitrust Division, Policy Guide to Merger Remedies 2 (June 2011), http://www.justice.gov/atr/public/guidelines/272350.pdf [2004 Remedies Guide] and US Dep’t of Justice, Antitrust Division, Policy Guide to Merger Remedies (October 2004), http://www.justice.gov/atr/page/file/1175136/download [2011 Remedies Guide].

9 US Dep’t of Justice, Antitrust Division, Merger Remedies Manual 3 (September 2020), https://www.justice.gov/atr/page/file/1312416/download.

10 id., at 4–5.

11 id., at 2, 10.

12 id., at 4–5.

13 15 USC Section 16, paras. (b) to (h). See, e.g., United States v. Comcast Corp, 808 F Supp 2d 145, 149 (D.D.C. 2011). See also United States v. CVS Health and Aetna Inc., United States’ Motion To Clarify And Amend The Court’s Planned Tunney Act Procedure, Case No. 1:18-cv-02340-RJL (D.D.C. 19 April 2019). The judge in this case took the unusual step of calling a hearing to consider the remedy proposed by the government to address horizontal concerns but also vertical concerns that were not identified in the complaint.

14 ‘Acting Associate Attorney General Bill Baer Delivers Remarks at American Antitrust Institute’s 17th Annual Conference’ (16 June 2016), http://www.justice.gov/opa/speech/acting-associate-attorney-general-bill-baer-delivers-remarks-american-antitrust-institute.

15 2004 Remedies Guide (see footnote 8, above) (quoting United States v. E I du Pont de Nemours & Co, 366 US 316, 331 (1961)), http://www.justice.gov/atr/page/file/1175136/download.

16 See [Proposed] Final Judgment at Sections IV to VI, United States v. Comcast Corp, No. 1:11-cv-00106 (D.D.C. 31 January 2011), http://www.justice.gov/atr/case-document/proposed-final-judgment-76; [Proposed] Final Judgment, United States v. Ticketmaster Entm’t Inc, No. 1:10-cv-00139 (D.D.C. 29 June 2010), http://www.justice.gov/atr/case-document/proposed-final-judgment-248; [Proposed] Final Judgment, United States v. Google Inc, No. 1:11-cv-00688 (D.D.C. 8 April 2011), http://www.justice.gov/atr/case-document/file/497661/download.

17 2011 Remedies Guide (see footnote 8, above), at 4 (emphasis added).

18 Makan Delrahim, Asst Att’y Gen, US Dep’t of Justice, Antitrust Division, Keynote Address at American Bar Association’s Antitrust Fall Forum (16 November 2017), https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-keynote-address-american-bar (noting: ‘For example, law professor and economist John Kwoka and Diana Moss of AAI wrote thoughtfully and critically about the problems of using regulatory solutions to address antitrust violations. They pointed out that “allowing the merger and then requiring the merged firm to ignore the incentives inherent in its integrated structure is both paradoxical and likely difficult to achieve.”’)

19 Merger Remedies Manual 3 (see footnote 9, above), at 4.

20 See, e.g., Steven C Salop, ‘Modifying Merger Consent Decrees to Improve Merger Enforcement Policy’, 31 Antitrust 15 (2016).

21 See John E Kwoka and Diana L Moss, ‘Behavioral Merger Remedies: Evaluation and Implications for Antitrust Enforcement’, 57 Antitrust Bull 979, 994, 1010 (2012). See also John E Kwoka Jr, ‘Does Merger Control Work? A Retrospective on Enforcement Policy, Remedies, and Outcomes’, 78 Antitrust L J 619, 636 (2013).

22 See, e.g., Bill Baer, Responses of Assistant Attorney General Bill Baer to Questions Submitted for the Record Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy, and Consumer Rights Hearing: ‘Oversight of the Enforcement of the Antitrust Laws’ (9 March 2016), http://www.judiciary.senate.gov/imo/media/doc/Baer%20Responses%20to%20QFRs.pdf; D Bruce Hoffman, Acting Director, Bureau of Competition, US Fed Trade Comm’n, ‘It Only Takes Two to Tango: Reflections on Six Months at the FTC’, 6–7 (2 February 2018), http://www.ftc.gov/system/files/documents/public_statements/1318363/hoffman_gcr_live_feb_2018_final.pdf.

23 United States v. Comcast Corp, 808 F Supp 2d 145, 149 (D.D.C. 2011).

24 id. (brackets in original).

25 ‘Court Review of ABI-SABMiller Merger Complete, Judge Signs Modified Final Judgment’, Alcohol L Rev (24 October 2018), http://alcohollawreview.com/justice-department-clear-abinbev-purchase-of-sabmiller-with-conditions/.

26 Modified Final Judgment, U.S. v. Anheuser-Busch InBev SA/NV and SABMiller, No. 1L16-cv-01483-EGS (D.D.C. 22 October 2018).

27 See, e.g., Letter from American Antitrust Institute, Food & Water Watch, and National Farmers Union to the US Department of Justice Re: Proposed Merger of Monsanto and Bayer (26 July 2017), http://www.antitrustinstitute.org/wp-content/uploads/2018/08/White-Paper_Monsanto-Bayer_7.26.17_0.pdf. See also Letter from American Antitrust Institute, Food & Water Watch, and National Farmers Union to the US Department of Justice Re: Monsanto-Bayer Merger: Competitive Concerns Surrounding Traits-Seeds-Chemicals Platforms, Digital Farming, and Farm Data (3 October 2017), http://www.antitrustinstitute.org/wp-content/uploads/2018/08/AAI-FWW-NFU_MON-BAY-addendum.pdf. The settlement notably includes potentially difficult to implement conditions that appear designed to correct possible inadequacies in the remedy that might become apparent post-merger. See Competitive Impact Statement at 17 and 18, US v. Bayer AG, Monsanto Company and BASF SE, Case 1:18-cv-01241 (D.C. Cir. 29 May 2018), http://www.justice.gov/opa/press-release/file/1066651/download.

28 United States of America v. Deutsche Telekom AG, T-Mobile Us, Inc., Softbank Group Corp., Sprint Corporation, and Dish Network Corporation, Proposed Final Judgment, Case 1:19-cv-02232 (D.D.C. 26 July 2019), http://www.justice.gov/opa/press-release/file/1187706/download.

29 See Press Release, Fed Trade Comm’n, ‘After Staples and Office Depot Abandon Proposed Merger FTC Dismisses Case from Administrative Trial Process’ (19 May 2016), http://www.ftc.gov/news-events/press-releases/2016/05/after-staples-office-depot-abandon-proposed-merger-ftc-dismisses; Press Release, Fed Trade Comm’n, ‘Statement of FTC Bureau of Competition Director Debbie Feinstein on Sysco and U.S. Foods’ Abandonment of Their Proposed Merger’ (29 June 2015), http://www.ftc.gov/news-events/press-releases/2015/06/statement-ftc-bureau-competition-director-debbie-feinstein-sysco; Complaint, United States v. Deere & Co, No. 1:16-cv-08515, at 16 and 18 (ND Ill 31 August 2016), http://www.justice.gov/opa/file/889071/download; Press Release, US Dep’t of Justice, ‘Electrolux and General Electric Abandon Anticompetitive Appliance Transaction After Four-Week Trial’ (7 December 2015), http://www.justice.gov/opa/pr/electrolux-and-general-electric-abandon-anticompetitive-appliance-transaction-after-four-week; Press Release, US Dep’t of Justice, ‘Applied Materials Inc. and Tokyo Electron Ltd Abandon Merger Plans After Justice Department Rejected Their Proposed Remedy’ (27 April 2015), http://www.justice.gov/opa/pr/applied-materials-inc-and-tokyo-electron-ltd-abandon-merger-plans-after-justice-department; Complaint at 2, 30, 32, 36, United States v. Halliburton Co, No. 1:16-cv-00233-UNA (D. Del. 6 April 2016), http://www.justice.gov/opa/file/838651/download; Complaint at 25, United States v. Anthem Inc, No. 1:16-cv-01493 (D.D.C. 21 July 2016), http://www.justice.gov/atr/file/903111/download; see also United States v. Anthem Inc, No. 17-5024, at 12–13 (D.C. Cir. 28 April 2017), http://www.justice.gov/atr/case-document/file/971316/download.

30 Press Release, US Dep’t of Justice, ‘Cengage and McGraw-Hill Terminate Merger Agreement in Response to Antitrust Concerns (4 May 2020), https://www.justice.gov/opa/pr/cengage-and-mcgraw-hill-terminate-merger-agreement-response-antitrust-concerns; Press Release, US Dep’t of Justice, ‘Justice Department Sues to Block Aon’s Acquisition of Willis Towers Watson’ (16 June 2021), https://www.justice.gov/opa/pr/justice-department-sues-block-aon-s-acquisition-willis-towers-watson.

31 US Dept. of Justice, Press Release, ‘Visa and Plaid Abandon Merger After Antitrust Division’s Suit to Block’ (12 January 2021), https://www.justice.gov/opa/pr/justice-department-sues-block-visas-proposed-acquisition-plaid.

32 Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a.

33 American Antitrust Institution, ‘The State of Antitrust Enforcement and Competition Policy in the U.S.’, 14 April 2020, https://www.antitrustinstitute.org/work-product/antitrust-enforcement-report/. The report relies on data from US Dep’t of Justice and Federal Trade Comm’n, Annual Reports to Congress Pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 1993-2019, https://www.ftc.gov/policy/reports/policy-reports/annual-competition-reports.

34 id.

35 id.

36 Press Release, Fed Trade Comm’n, ‘FTC Requires Albertsons and Safeway to Sell 168 Stores as a Condition of Merger’ (27 January 2015), http://www.ftc.gov/news-events/press-releases/2015/01/ftc-requires-albertsons-safeway-sell-168-stores-condition-merger; Brent Kendall, ‘Haggen Struggles After Trying to Digest Albertsons Stores’, Wall St J (9 October 2015), http://www.wsj.com/articles/haggen-struggles-after-trying-to-digest-albertsons-stores-1444410394.

37 David McLaughlin, Mark Clothier and Sara Forden, ‘“Hertz” Spinoff of Advantage Rent A Car Was Doomed From the Start Says Insider’, Bloomberg (13 November 2013), https://skift.com/2013/11/30/hertz-spinoff-of-advantage-rent-a-car-was-doomed-from-the-start-says-insider/.

38 See, e.g., Jose R Guardado, David W Emmons and Carol K Kane, ‘The Price Effects of a Large Merger of Health Insurers: A Case Study of UnitedHealth-Sierra’, 1 Health Mgmt Pol’y 16 (2013); Leemore Dafny, Mark Dugga and Subramaniam Ramanaraynan, ‘Paying a Premium on your Premium? Consolidation in the US Health Insurance Industry’, 102 Am Econ Rev 1161 (2012).

39 See Ted Johnson, ‘Senator Asks DOJ to Take Another Look at Comcast-NBCUniversal Merger’, Variety (13 December 2017), http://www.variety.com/2017/politics/news/comcast-nbc-universal-deal-richard-blumenthal-1202639853/.

40 See, e.g., John Kwoka, ‘The Structural Presumption and the Safe Harbor in Merger Review: False Positives or Unwarranted Concerns?’ 81 Antitrust L J 837, 860–61 (2017).
See also, John Kwoka, Mergers, Merger Control, and Remedies: A Retrospective Analysis of US Policy (2015). See also, e.g., Orley C Ashenfelter, Daniel S Hosken and Matthew C Weinberg, ‘The Price Effects of a Large Merger of Manufacturers: A Case Study of Maytag-Whirlpool’, Working Paper 17476, National Bureau of Economic Research (October 2011), http://www.nber.org/papers/w17476.pdf (finding price increases for dishwashers and relatively large price increases for clothes dryers, but no price effects for refrigerators or clothes washers); and Nathan H Miller and Matthew C Weinberg, ‘Mergers Facilitate Tacit Collusion: Empirical Evidence from the US Brewing Industry’ (25 March 2015) (finding that while the Miller/Coors joint venture resulted in merger-specific cost reductions, average retail prices increased post-consummation, probably because of tacit collusion).

41 Kwoka op.cit. (footnote 40, above).

42 FTC’s Merger Remedies 2006–2012, A Report of the Bureaus of Competition and Economics (January 2017), http://www.ftc.gov/system/files/documents/reports/ftcs-merger-remedies-2006-2012-report-bureaus-competition-economics/p143100_ftc_merger_remedies_2006-2012.pdf; A Study of the Commission’s Divestiture Process, Bureau of Competition (August 1999), http://www.ftc.gov/sites/default/files/attachments/merger-review/divestiture.pdf.

43 id., at 1.

44 United States v. Ticketmaster Entertainment, Inc. and Live Nation Entertainment Inc., Motion To Modify Final Judgment and Enter Amended Final Judgment, Case No. 1:10-cv-00139-RMC (D.D.C. 8 Jan 2020) and United States v. Ticketmaster Entertainment, Inc. and Live Nation Entertainment Inc., Amended Final Judgment, Case No. 1:10-cv-00139-RMC (D.D.C. 28 Jan 2020).

45 id.

46 Sycamore Partners II L.P., Staples Inc., and Essendant, Inc., Fed Trade Comm’n, Decision, Docket No. C-4667 (25 January 2019), http://www.ftc.gov/system/files/documents/cases/1810180_staples_essendant_do_and_apps_a-g-redacted_public_version.pdf.

47 Northrop Grumman Corp. and Orbital ATK, Inc., Fed Trade Comm’n, Decision, Docket No. C-4652, https://www.ftc.gov/system/files/documents/cases/181_0005_c-4652_northrop_grumman_orbital_atk_modified_decision_and_order_12-4-18.pdf.

48 Diana L. Moss, ‘From Competition To Conspiracy: Assessing The Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector’, Am. Antitrust Inst. (3 September 2020), https://www.antitrustinstitute.org/wp-content/uploads/2020/09/AAI_PharmaReport2020_9-11-20.pdf.

49 id., at 15.

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