By Timothy J. Muris (George Mason University) & Jonathan E. Nuechterlein (Sidley Austin)
Antitrust populists increasingly call on the government to “break up big tech.” But antitrust enforcers would face heavy evidentiary burdens if they sought to break a company up on the premise that a long-consummated merger was unlawful from the outset and should have been blocked years ago. Specifically, they would have to prove (1) that the but-for world would likely be more competitive than the actual world; (2) that their basis for unwinding the merger was sufficiently foreseeable at the time of consummation that the merger could have been challenged then: and (3) that the prospective benefits of unwinding the merger outweigh the prospective harms, including the costs and inefficiencies that often arise from such de-integration.
The combination of these burdens would be difficult for antitrust authorities to meet, and for good reason. It should be hard for the government to unwind any merger that it reviewed before consummation (or shortly thereafter) and elected not to challenge then. Mergers present a complex mix of potential costs and benefits. The antitrust laws empower enforcement authorities to review those costs and benefits promptly and give them appropriate incentives to bring any enforcement action without delay, often before consummation. Those incentives would be weakened if antitrust enforcers could lie in wait while mergers are consummated in hopes of securing more favorable litigation burdens years later.
Featured News
Automakers Challenge Maine’s Right to Repair Law
Feb 12, 2025 by
CPI
Senators Urged to Expedite Gail Slater’s Confirmation as DOJ Antitrust Chief
Feb 11, 2025 by
CPI
Former Michigan Asphalt Executive Pleads Guilty in Bid-Rigging Scheme
Feb 11, 2025 by
CPI
Ballard Spahr Expands Litigation Team with Addition of Antitrust Attorney in Seattle
Feb 11, 2025 by
CPI
Portuguese Court Overturns €225 Million Fine for Banking Collusion Due to Statute of Limitations
Feb 11, 2025 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – International Criminal Enforcement
Jan 23, 2025 by
CPI
The Antitrust Division’s Recent Work to Combat International Cartels
Jan 23, 2025 by
Emma Burnham & Benjamin Christenson
Information Sharing: The New Frontier of U.S. Antitrust Enforcement
Jan 23, 2025 by
Brian P. Quinn, Casey Kovarik & Michael Tubach
The Key Role of Guidelines on Exchanges of Information Among Competitors and the Divergent Transatlantic Paths
Jan 23, 2025 by
Rosa Abrantes-Metz & Albert Metz
Leniency, Whistleblowers, and Compliance
Jan 23, 2025 by
Richard Powers, Tara O’Malley & Cory Gordon