Brian Albrecht and Gus Hurwitz on the Merger Guidelines

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Cato@Liberty – ICLE Chief Economist Brian Albrecht and Director of Law & Economics Programs Gus Hurwitz were cited in a post at the Cato@Liberty blog about the proposed merger guidelines. You can read full piece here.

As Brian Albrecht points out, economics questions the idea that concentration correlates to an anti??competitive effect. Similarly, others have discussed how increased concentration does not mean higher prices for consumers. In fact, it would punish firms from improving efficiency in ways that lead to lower prices as such actions can lead to increased concentration due to consumer response to lower prices.

…As Gus Hurwitz tweets, while many of these cases are technically “good law”, this is largely due to the fact that previous guidelines for agency enforcement have led to more informal behavioral changes and settlements that meant courts have not had the opportunity to formally repudiate them in the past. The selective nature of the new guidelines is likely to meet skepticism from courts more familiar with the entire body of law and could, in fact, result in more formal repudiation of the cases on which the guidelines are based. Agency officials seeking to enforce under the new guidelines could find themselves worse off than they are now by providing courts a more formal opportunity to overturn these outdated precedents and diminish the courts’ view of the soundness of the agency’s guidelines.