Document Type

Article

Publication Date

2026

Abstract

This Essay identifies an emerging problem in antitrust law and policy, particularly in the technology industry. Antitrust doctrine has historically revolved around internal control of firm, i.e., equity acquisition. It focuses on the capture of internal control. Mergers and acquisitions trigger regulatory review. In these deals, the locus of anticompetitive behavior lies in ownership and internal governance. However, one can capture control through various ways. An emerging problem in antitrust law is external exertion of control through contract. Competition can be stifled, and thus price, non-price, and innovation factors can be controlled or manipulated through the levers of control existing outside of the legal ownership governance boundary of the firm. Contracts enable all manners of control without internal control of governance; thus, they can achieve the same outcome of anticompetitive behavior. Albeit existing in all kinds of firms and industry sectors, this problem is an emerging phenomenon in high tech and is especially acute there. This Essay reveals a fundamental gap in antitrust law specific to merger control. Analogizing to the basic principles of agency law and corporate law, this Essay argues that the de facto control of another firm, manifesting in anticompetitive results, should trigger merger review. The proper test for enjoining a merger should encompass the various ways in firms are subject to contractual control capture resulting in behavior and outcomes that are potentially anticompetitive.

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