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

Thirteen Sets of Observations/Recommendations Pertinent to the Revision of the DOJ/FTC (M&A)... 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. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Antitrust Bulletin SAGE

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

Antitrust Bulletin , Volume 68 (2): 41 – Jun 1, 2023

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References (1)

Publisher
SAGE
Copyright
© The Author(s) 2023
ISSN
0003-603X
eISSN
1930-7969
DOI
10.1177/0003603x231162997
Publisher site
See Article on Publisher Site

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.

Journal

Antitrust BulletinSAGE

Published: Jun 1, 2023

Keywords: antitrust-policy-relevant moral norms; competitive-impact-analysis protocol; economic-efficiency-impact-analysis protocol; moral relevance of economic-efficiency/seller-competition impacts; tests of antitrust illegality

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