Response or Comment
This Essay provides an overview of U.S. antitrust merger practice in addressing efficiencies both in terms of actual practice before the agencies and in scholarly work as a response to Jamie Henikoff Moffitt's Vanderbilt Law Review article Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis. Moffitt’s analysis could have benefited from a more thorough discussion of the Department of Justice and Federal Trade Commission’s (collectively, the “agencies”) analysis of efficiencies during investigations and the broader process of negotiations involving mergers. For instance, the article does not discuss the empirical work addressing when the agencies use efficiencies, the role antitrust practitioners play during the merger process in shaping whether or not the agencies will litigate a case, or the types of issues that end in litigation. Moreover, the article does not sufficiently analyze merger enforcement decisions at the agencies based on the efficiencies section of the 1997 Revisions to the Horizontal Merger Guidelines (“1997 Revisions”) and the new 2010 Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (“2010 Merger Guidelines”). Moffitt also overlooks the importance of the 2006 Commentary on the Horizontal Merger Guidelines (“Commentary”) and fails to address the chapter within the Commentary that specifically addresses how the agencies consider efficiencies. Lastly, Moffitt’s claims stressing the importance of her work in a broader context of business issues (such as the financial crisis) and policy debates regarding shifts in antitrust merger enforcement are without empirical support. This Response addresses each of these issues in turn.
D. Daniel Sokol & James A. Fishkin, Antitrust Merger Efficiencies in the Shadow of the Law, 64 Vanderbilt L. Rev. En Banc 45 (2011), available at http://scholarship.law.ufl.edu/facultypub/324