Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Friday, June 18, 2010

Antitrust Merger Enforcement Was Not Weaker Under Bush

Posted by D. Daniel Sokol

I have just posted my forthcoming article,Antitrust, Institutions, and Merger Control.  In it, I have a broad discussion on institutional analysis in antitrust across domestic and international institutions and across public and private rights.  As part of the in depth analysis I include a discussion of institutional issues that emerge in merger control.  One thing that I include (and I realize for lots of practitioner readers, you are not going to read the entire 96 pages so let's cut to the chase) is data from both quantitative and qualitative surveys of antitrust practitioners.  What emerges among Chambers ranked practitioners from every state in which Chambers ranks antitrust practitioners who are merger specialists (at least 40 percent of their work in the last two years has been in mergers), slightly over half of such practitioners witnessed no change whatsoever under Bush than under previous administrations on their specific deals (ie, the ones in which they had the best knowledge, not ones that they read about in the paper).  Of the remainder, most witnessed a drop of enforcement only at the margins-- first requests that didn't go to second requests and second requests that did not get challenged, especially when there was a good efficiency story.  Now, it may be that at the margins is most of antitrust change from one administration to the next.  However, these findings go against the prevailing antitrust discourse that there was a significant reduction in enforcement under Bush.  These findings were counter-intuitive and surprised me. Download it while it is hot.  If you read the entire paper and the footnotes you will find citations to a relevant Simpsons episode, post-modernist philosopher Michel Foucault, and 80s rock band Wang-Chung along with the usual antitrust suspects in law and economics.

Basically, I think that the article makes two important contributions.  The first is that it lays out the interplay of various antitrust institutions at state, federal and international levels.  Second, it provides new survey data that challenges the antitrust narrative of the past few years in the area of mergers.

ABSTRACT: This article provides a descriptive, analytical overview of the various institutions to better frame the larger institutional interrelations for a comparative institutional analysis. In the next Part it examines mergers as a case study of how one might apply antitrust institutional analysis across these different kinds and levels of antitrust institutions. The Article utilizes both quantitative and qualitative methods based on survey data of antitrust practitioners on merger issues to better understand institutional choice and the decision-making process. The surveys reveal results that run counter to the popular antitrust discourse about the level of merger enforcement under Bush. Slightly more than half of all practitioners surveyed found no change in merger enforcement under Bush in their own practice and the vast majority of the rest found a change in enforcement to be merely at the margins. The Article concludes with observations from the case study and appeals for more theoretical and empirical works in antitrust institutional analysis.

June 18 Update:

Someone asked if they there is time to provide comments before publication.  The answer is yes (but hurry).  I am happy to receive any comments and will try my best to incorprate them.

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Wang Chung comment was a Cheap Trick -- pun somewhat intended -- to get me to download it but I did -- and now I'll read it.

See if you can work in "hungry like a wolf" into your next article on abuse of dominance.

Posted by: Steve Cernak | Jun 17, 2010 9:56:01 AM

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