Thirteen Sets of Observations/Recommendations Pertinent to the Revision of the DOJ/FTC (M&A) Guidelines

Abstract

This Article provides recommendations both for improving the accuracy of applications of the Sherman Act and Clayton Act to mergers and acquisitions (M&A)s and for creating morally-desirable (M&A) policies. It defines the specific-anticompetitive-intent and lessening-competition tests of illegality that current U.S. antitrust law applies to (M&A)s; explains why neither classical economic markets nor antitrust markets can be defined non-arbitrarily, and why it is therefore inaccurate and unconstitutional to use market-oriented approaches to analyzing the illegality of (M&A)s under current U.S. antitrust law; outlines appropriate non-market-oriented protocols for determining the illegality of (M&A)s under the Sherman and Clayton Acts—whether the (M or A) was motivated by specific anticompetitive intent or would tend to lessen competition; delineates the liberal conception of justice and various egalitarian conceptions of the moral good and argues that in the U.S. those moral norms should be used to evaluate antitrust policies; outlines the protocol that is economically efficient to use to predict the economic efficiency of particular (M or A)s or particular (M&A) policies; and considers the relevance of the economic efficiency and competitive impact of any (M or A) or any (M&A)-focused antitrust policy for its moral desirability.