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How the Chicago School Overshot the MarkThe Effect of Conservative Economic Analysis on U.S. Antitrust$
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Robert Pitofsky

Print publication date: 2008

Print ISBN-13: 9780195372823

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195372823.001.0001

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Reinvigorating Horizontal Merger Enforcement

Reinvigorating Horizontal Merger Enforcement

Chapter:
(p.235) Reinvigorating Horizontal Merger Enforcement
Source:
How the Chicago School Overshot the Mark
Author(s):

Jonathan B. Baker

Carl Shapiro

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195372823.003.0015

The past 40 years have witnessed a transformation in horizontal merger enforcement in the United States. The weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically, and increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion, and efficiencies. This paper documents this shift and provides examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. It shows that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. It argues in favor of reinvigorating horizontal merger enforcement by partially restoring the presumption that mergers that produce high combined market shares are questionable. It proposes several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated versus unilateral anticompetitive effects.

Keywords:   horizontal merger, antitrust enforcement, Justice Department, Chicago School

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