My co-author, Marc Williamson, just alterted me to this section in the recently-published FTC/DOJ Merger Guidelines Commentary (.pdf)…

Read the full piece here.

The DOJ will not challenge Whirlpool’s (much-blogged-about) proposed acquisition of Maytag (HT: WSJ Law Blog). This Reuters blurb suggests that antitrust experts believe the decision “is a key test of the Justice Department’s new antitrust chief and could provide a glimpse of how tough he will be in reviewing mergers” (HT: Antitrust Review).

Read the full piece here.

It drives me nuts when the government attempts to justify rules mandating particular business practices on grounds that they reduce costs for the businesses being regulated. My favorite recent example of this is OSHA’s ultimately repealed (thank goodness!) ergonomics standard. The agency sought to justify the extraordinarily intrusive rule on grounds that it would save employers $9.1 billion per year (after compliance costs) in reduced sickdays and workers’ compensation costs. Of course, the agency never bothered to explain why, in light of these cost-savings, the government needed to force compliance.

Read the full piece here.

It is a pretty exciting time in the antitrust world. This, of course, is bad news for firms. SCOTUS will decide three antitrust cases this term, each offering a promising opportunity to clarify murky doctrine or undo an erroneous application of relatively clear antitrust principles. Texaco v Dagher falls into the latter category. The bulk of the commentary I’ve seen has been critical. For example, Christine Hurt at the Glom describes the plaintiff’s theory “somewhat strained.” Ron Davis goes a bit further, describing Dagher as “The Worst Antitrust Case of the 21st Century.” That is saying something. Yet, given the impact of the decision on integrative activity if affirmed, I’m inclined to agree.

Read the full piece here.

Abstract

The legality of nonprice vertical practices in the U.S. is determined by their likely competitive effects. An optimal enforcement rule combines evidence with theory to update prior beliefs, and specifies a decision that minimizes the expected loss. Because the welfare effects of vertical practices are theoretically ambiguous, optimal decisions depend heavily on prior beliefs, which should be guided by empirical evidence. Empirically, vertical restraints appear to reduce price and/or increase output. Thus, absent a good natural experiment to evaluate a particular restraint’s effect, an optimal policy places a heavy burden on plaintiffs to show that a restraint is anticompetitive