What Happens Next to Antitrust—In 6 Questions

Antitrust, Vol. 35, No. 3, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. What Happens Next to Antitrust—in 6 Questions

JOSHUA H. SOVEN

E ARE IN A BULL MARKET FOR century. . . . Few people dispute that antitrust’s core mission debate about antitrust policy. The rapid is protecting consumers’ right to the low prices, innovation, growth and size of some companies, and diverse production that competition promises.”5 new business models, and increased Professor Hovenkamp probably overstated the level of focus on the labor markets have gener- agreement about whether the consumer welfare standard ated a volatile discussion about the future of antitrust policy protects “diverse production.” But he was right that there andW enforcement. has been consensus that the antitrust agencies should focus For many, the back and forth involves heroes and villains, on challenges to conduct that increases prices and/or reduces new friends and old foes, and antitrust “school” rivalries.1 levels of quality and innovation. The number of compet- This dynamic is healthy—it promotes candid discussion and itors in a market matters when it informs the analysis of new thinking. But the intensity of the debate can cloud the conduct’s effects on customers, but preserving a particular practical implications of the policy choices for businesses. market structure has not been an end in itself. This article unpacks some of those implications by analyz- Reflecting this consensus, in June 2021, the Supreme ing six questions. And while everyone has an agenda (and I Court, in essence, described the consumer welfare standard have mine), I do not focus on what I think should happen, in its unanimous decision that held that certain restric- but on what I think will happen, and how businesses should tions on compensation for student-athletes imposed by the prepare for what happens next.2 National Collegiate Athletic Association violated Section 1 of the Sherman Act: “[It is] a fact-specific assessment of 1. What is antitrust trying to accomplish? market power and market structure aimed at assessing the The next phase of antitrust will depend a lot on what the challenged restraint’s actual effect on competition—espe- Biden administration decides is the purpose of the antitrust cially its capacity to reduce output and increase price.”6 laws. Complete consensus on the objectives of antitrust has Members of the Biden administration (in their writings) never existed.3 Until the 1970s, prosecutors and the courts have argued that “excessive market power is a serious prob- often applied the antitrust laws to protect small businesses lem” in the United States7 and raised two concerns about the and to try to preserve and restore unconcentrated market consumer welfare standard. First, some assert that the stan- structures.4 The impact of conduct on consumers and eco- dard does not reliably cover conduct that generates short- nomic efficiency mattered, but not as much as it does today. term benefits for consumers, but potentially could produce Next came about two decades of accepting, rejecting, harms to competition in the long run. For example, they and modifying the Chicago School’s position that antitrust think that the consumer welfare standard does a poor job of should focus on price and economic efficiency, after which stopping large companies from reducing prices below costs, antitrust policy had a pretty soft landing on the consumer which they believe can over time reduce the number of com- welfare standard. In 2005, Professor Herbert Hovenkamp, petitors and innovation. Professor Timothy Wu (the Special the author of the leading antitrust treatise, described the Assistant to President Biden for Technology and Competi- state of play: “[T] oday we enjoy more consensus about the tion Policy) put it this way: goals of the antitrust laws than at any time in the last half [E]mphasis on measurable harms to consumers still tends to bias the law toward a focus on static harms and, especially, on prices. Such “price fixation” inevitably tends to mar- Joshua H. Soven is a partner at Wilson Sonsini Goodrich & Rosati in ginalize parts of the antitrust law concerned with dynamic Washington, D.C., and an Associate Editor of Antitrust. He served as harms—harms like the blocking of potential competition, a Section Chief and Trial Attorney at the Antitrust Division of the U.S. slowing of innovation, loss of quality competition, and Department of Justice, and as an Attorney Advisor to the Chairman of overall industry stagnation.8 the Federal Trade Commission. Mr. Soven and Wilson Sonsini represent The second concern among Biden administration offi- companies with interests in these issues. The views in this article are cials is that the consumer welfare standard does not achieve those of Mr. Soven. what they believe was Congress’ central goal for the antitrust

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laws—to prevent the “excessive concentrations of economic consumer welfare standard because it requires them to hit power,” by protecting smaller businesses, suppliers, and only a single evidentiary target—showing that the defendants labor. FTC Chair Lina Khan has written: planned to increase prices, drop levels of output or service, Focusing antitrust exclusively on consumer welfare is a mis- and/or reduce innovation. The standard also has helped the take. For one, it betrays legislative intent, which makes clear antitrust agencies defeat efficiencies defenses in merger cases that Congress passed antitrust laws to safeguard against because, as applied by the courts, companies must show that excessive concentrations of economic power. This vision they will pass most or all of the efficiencies on to customers.14 promotes a variety of aims, including the preservation of In contrast, the “competitive process” standard is broader open markets, the protection of producers and consumers and less precise, which will leave room for businesses to from monopoly abuse, and the dispersion of political and economic control. Secondly, focusing on consumer welfare urge the courts to adopt favorable interpretations. And if disregards the host of other ways that excessive concentra- a variety of welfare concerns become relevant in antitrust tion can harm us—enabling firms to squeeze suppliers and litigation—concentration of power, labor, suppliers, etc.— producers, endangering system stability (for instance, by businesses can advocate that the courts should incorporate allowing companies to become too big to fail), or under- these factors into the analysis. For example, companies can 9 mining media diversity, to name a few. sometimes make credible arguments that a merger will help Chair Khan, Professor Wu, and others in the Biden them avoid layoffs, increase wages, and support unions. administration want to replace the consumer welfare stan- In addition, a renewed emphasis on “market structure” dard with a benchmark that focuses on protecting the “com- and protection of smaller businesses will present strategic petitive process.”10 Professor Wu has written that to develop opportunities for businesses in litigation if it causes the this approach “will require much further work and practice courts to place greater emphasis on old-style market defini- to arrive at practicable standards,” but that “the basic question. For several decades, the primary litigation obstacle that tion is whether the complained-of conduct is competition the antitrust agencies faced was not the Chicago School’s on the merits, or, rather, an effort to disable or subvert the de-emphasis of market structure, but the inability to prove competitive process.”11 “This is a test primarily focused on a traditional market structure in the first place. To deal with protection of a process, more specifically, which is different this problem, the antitrust agencies successfully advocated than the maximization of a value.”12 Professor Wu wrote for a more flexible view of market definition that used that the competitive process standard is “not ultimately tied econometric tools to measure the relative intensity of price to arguments about whether, in the final analysis, consumer and quality competition between companies.15 This has pro- welfare has been served or not.”13 duced big benefits for the antitrust agencies in litigation. For The courts will not replace or modify the consumer wel- example, the FTC’s flagship hospital merger enforcement fare standard overnight. But the desire to do so by mem- program often sidesteps traditional market definition and bers of the Biden administration will produce immediate policy objectives favored by some critics of the consumer consequences for businesses. Many antitrust investigations welfare standard (e.g., wages and impacts on suppliers). are resolved at the agencies, without litigation. (Lawyers like Instead, the program hinges on an FTC economic model trials; most companies do not.) The Biden administration that has a singular focus on whether a merger is likely to will, in many cases, investigate the wide set of issues raised increase prices to the hospitals’ customers. by those who favor the competitive process standard. This will lengthen some investigations and expand the scope of 2. Does antitrust policy play dice the information the parties need to produce. For example, with competition?16 the antitrust agencies have already started to ask for more On the surface, the antitrust debate is about legal doctrine. information about how transactions affect labor markets. But the substance of the disagreements largely boils down to To reduce regulatory risk and manage investigation costs, how much risk to take that conduct will reduce competition. companies will need to broaden the scope of their advocacy In an enforcement framework, the risk issue reduces to to go beyond price effects and incentives to innovate. From two questions. First, what “probability of harm” test should the outset, companies should have thorough presentations the agencies and the courts use to determine antitrust liabil- that address the transaction’s effects on smaller businesses ity? For example, does conduct violate the antitrust laws if and other competitors, labor rates, unions, and diversity there is a 51 percent chance that it will reduce competition? of consumer choice. For high-profile transactions, com- Second, what is the plaintiff’s burden of proof in court (e.g., panies will often need to make presentations to Congress, a preponderance of the evidence) to show that the probabil- other federal agencies, labor organizations, political interest ity test is satisfied? groups, and other stakeholders. In the 131 years since Congress passed the Sherman In litigation, the push to replace the consumer welfare Act, neither the antitrust agencies nor the courts have standard will increase risks for defendants in some circum- answered these two questions with precision. Instead, the stances, but it will also present strategic opportunities. The agencies and courts have adopted a variety of presumptions DOJ’s and FTC’s litigators have often benefited from the and burden-shifting mechanisms to resolve antitrust cases.

76 · ANTITRUST Nevertheless, I think that the DOJ’s and FTC’s litigators is a hard science, antitrust remains an imprecise discipline. believe that to win a case, they need to prove that it is more Bad “intent” documents will both put pressure on and make likely than not that conduct will cause a material and fore- it easier for the Biden administration to challenge conduct seeable reduction in competition. And this belief affects case that has a relatively low probability of causing competitive selection. For example, the antitrust agencies generally do harm. Professor Wu has explained: “[E]vidence of an anti- not challenge acquisitions of a “nascent” competitor when competitive plan is a particularly important guide in this there is only a very low chance of a loss of competition (e.g., area. Such intent might be subjectively expressed through below 5 percent). testimony or internal writings. The enforcer or factfinder The Biden administration, its advisors, and some mem- essentially borrows a party’s expertise to help form a judg- bers of Congress believe that antitrust enforcers have ment about competitive effects.”20 wrongly erred on the side of under-enforcement. To address In this environment, hot documents will also make it this, they want to (1) lower the risk thresholds that the much easier for courts to resolve ambiguities against compa- agencies use when they decide whether to bring an enforce- nies. It will become exceptionally important that company ment action, and (2) reduce the agencies’ burden of proof officials describe their conduct and competitors accurately, to demonstrate that conduct violates the antitrust laws. For and with precision. Hyperbole that may look harmless at the example, Professor Wu has written that the antitrust agen- time could generate a government lawsuit. cies have applied too high a standard when they decide Third, if pending antitrust bills become law, it will likely whether to challenge acquisitions of nascent competitors by require businesses to change litigation strategies. Some of large technology companies.17 the proposed legislation effectively puts the burden of proof Relatedly, six prominent antitrust practitioners and schol- on the defendants for certain conduct. This may cause courts ars, including Professor Wu, published a report that advo- to give the defendants greater latitude to obtain substantial cates for legislation that “under some circumstances [makes] discovery from the government’s witnesses and other third conduct that creates a risk of substantial harm [] unlawful parties. even if the harm cannot be shown to be more likely than not.”18 Putting the burden on the defendants might also cause The views of these practitioners and scholars are reflected in some courts to allow the defendants to go first at trial, which bills pending in Congress. These bills would: (1) prohibit will enable the parties to cross-examine the government’s certain acquisitions by large companies; (2) expand the types witnesses in the defendants’ case in chief. Relatedly, if lit- of conduct for which there is a presumption of illegality; igation becomes more about the competitive process and (3) shift burdens of proof to the defendants for certain cases; less about consumer welfare, it could put more pressure on (4) lower the government’s burden of proof in merger cases; the antitrust agencies to sponsor credible testimony from (5) require that large technology platforms avoid preferenc- third-party competitors who allegedly will be harmed by ing their own products and services and make data available the defendants’ conduct. To prepare a witness properly for to competitors; and (6) most dramatically, could require the trial requires a substantial investment of time and resources. breakup of some large technology platforms.19 Even officials from third parties who agree to testify at trial Similar to the Biden administration’s doubts about for the DOJ or the FTC often are reluctant to make this the consumer welfare standard, this risk-averse dynamic commitment. will affect antitrust enforcement policy, particularly if the antitrust agencies receive more funding. For example, the 3. Who really is at the top of the antitrust administration’s antitrust team will scrutinize a number pyramid?21 of acquisitions by large companies that, until recently, the The Biden administration may or may not dent the U.S. agencies would have cleared quickly because they do not antitrust law universe,22 but, either way, European compe- create a material risk of foreseeable harm to consumers. The tition agencies probably will present the biggest regulatory implications for businesses are substantial. risk to many U.S. companies over the next five years. The First, in this environment, some companies facing an political and economic forces that will produce more aggres- antitrust investigation should accelerate the production of sive enforcement in the United States are just as strong in ordinary course of business documents that can demon- Europe. And European competition agencies generally do strate that there is no significant risk of a loss of competition not need to go to court to stop mergers and other con- or harm to the competitive process. This approach can avoid duct, which gives them more latitude to bring enforcement the delays that can occur when the agency intends to con- actions that could present substantial litigation risks in the duct an extensive investigation. An incrementalist approach United States. Moreover, the U.S. antitrust agencies may by companies under investigation, which was always an urge European authorities to stop conduct that they doubt overrated strategy, will become more likely to prolong inves- they can challenge under U.S. law. tigations, raise costs, and increase business risks. Two recent developments illustrate the increased anti- Second, “hot” documents will present even greater risks to trust risks to U.S. companies from competition authorities businesses than they do today. While often packaged as if it in Europe. First, in March 2021, the European Commission

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(EC) implemented a rule that expands the number of Transportation Board, “Mergers subject to the HSR Act can smaller transactions that the Commission can review in occasionally take a year or more to reach final decision.”32 order to give the EC greater ability to review transactions Merger process reforms do not stick in part because many that involve nascent competitors, even when the nascent at the DOJ and the FTC doubt that they serve the agen- firm has little or no revenue.23 The rule enables EC mem- cies’ interests when they review large strategic transactions. ber countries to request that the EC review any merger that Rather, they think that the agencies benefit from a lot of does not meet the EU merger thresholds, but “affects trade time to investigate such transactions and to prepare for lit- between Member States” and “threatens to significantly igation. Parties (and their lawyers) are also responsible for affect competition” within the territory of that member the modest success of merger process reforms. Many parties country, regardless of whether it meets the thresholds in that decide not to respond rapidly to a Second Request because Member State.24 The Guidance also provides for post-clos- they think that it will make the agencies hostile to their deal ing referrals regardless of whether the referral complies with and that with more time the agencies “will come around.” current statutory requirements. Although there are credible arguments why a faster Businesses should expect that the EC will use this merger review process would produce substantial benefits expanded authority frequently. In May 2021, the European for the antitrust agencies and the parties in many matters, Commission used the authority to open an investigation of there are no signs of change to the status quo. If the Biden Illumina’s proposed acquisition of GRAIL.25 Because the administration does speed up merger investigations, the fol- EC investigation barred the parties from closing, the FTC lowing factors will probably drive reform: moved to dismiss its federal litigation complaint that sought First, the antitrust agencies and the parties realize that to enjoin the deal pending a lengthier administrative trial at technology now enables the merging parties to produce the FTC.26 Companies need to plan for member countries in three months the information that the agencies use to to make such referrals to the EC on their own initiative. make most enforcement decisions: documents from the files They also need to account for (offensively and defensively) of 10–15 senior officials; financial databases; and win-loss the ability of private parties with strategic interests in a deal data. It might take a month or two longer for the agencies to urge member states to make such referrals to the EC. to obtain the information they need from third parties, but Second, since Brexit, the United Kingdom’s Competition no more than that. and Markets Authority (CMA) has stepped up its level of Second, the parties involved in a Second Request inves- scrutiny of transactions, particularly those in the technol- tigation decide that it is in their interest to push for an ogy and medical technology sectors that involve nascent or agreement with the antitrust agencies that enables them to adjacent competitors. For example, in 2020, just two days complete the investigation in seven months and complete after the U.S. District Court for the District of Delaware any litigation in four months. This schedule would enable a denied the DOJ’s attempt to block Sabre’s acquisition of district court to issue a ruling within one year after the HSR Farelogix,27 the CMA stopped the transaction.28 Notably, filing, a rarity today. the Antitrust Division’s Assistant Attorney General at that Third, the antitrust agencies really commit to relying time praised the CMA’s decision in a DOJ press release.29 on structural presumptions, and conclude that they do not Handling a regulatory review in Europe was already anal- benefit from long discovery schedules and multi-week trials ogous to three-dimensional chess. The latest developments where the bulk of the time is spent litigating why a pre- add even more dimensions. The issues that will become sumption is not informative about the transaction’s likely more complex include: drafting risk allocation covenants for competitive effects.33 Relatedly, merger reviews will accel- merger agreements; decisions about which European author- erate if the agencies decide that it is not in their interests to ities to notify about a transaction; assessments about whether give the parties many months to unilaterally construct their third parties will push for investigations to advance their stra- own remedies that put the agencies in the defensive position tegic interests; and whether and how to discuss competition of “litigating the fix.” reviews in Europe with the U.S. antitrust agencies. 5. Will antitrust enforcers stop worrying and learn 4. Does anyone “feel the need for speed” to love regulation?34 in merger reviews?30 If you tell a lawyer or economist who works at the Anti- Commentators have written millions of words about poten- trust Division or the FTC that they are a regulator, they tial changes to the antitrust law that governs mergers, but usually respond with a cross look. They view their work as remarkably few about how to make antitrust merger reviews law enforcement, not regulation. And they have a point; go faster. The antitrust agencies have rolled out initiatives much of the justification for robust antitrust enforcement is intended to streamline merger investigations. However, to avoid regulation.35 these initiatives have had only modest effect.31 Instead, Today, politicians, commentators, and antitrust law- as the DOJ recently wrote in a submission to the Surface yers across the political spectrum are pushing away historic

78 · ANTITRUST concerns about antitrust getting into the regulation busi- unanimous Supreme Court rejected a Section 2 complaint ness. They reason that antitrust enforcement tools, by them- against Verizon in part because Verizon and the conduct selves, are not adequate to protect competition. FTC Chair at issue were subject to regulatory oversight by the Federal Khan has written that “reliance on case-by-case adjudica- Communications Commission.42 tion yields a system of enforcement that generates ambigu- ity, unduly drains resources from enforcers, and deprives 6. What about the people in the arena? individuals and firms of any real opportunity to democrat- In 1910, President Theodore Roosevelt credited the indi- ically participate in the process.”36 In her prominent article vidual who is “in the arena” over the “critic.”43 Roughly a on Amazon, Chair Khan discusses how, given her view that century later, ESPN television anchor Kenny Mayne com- “Amazon increasingly serves as essential infrastructure across mented on SportsCenter that “we all know that games aren’t the internet economy, applying elements of public utility played on paper; they are played by little men inside our TV regulations to its business is worth considering.”37 sets.”44 Roosevelt’s speech had more impact than Mayne’s Political conservatives are also calling for various regu- joke, but they were making the same point: Events are not lations. Supreme Court Justice Thomas recently wrote in self-executing and the participants determine the outcome. a concurring opinion that “[t]here is a fair argument that This is true for antitrust enforcement too. some digital platforms are sufficiently akin to common car- Where the antitrust agencies (and businesses) have riers or places of accommodation to be regulated.”38 And succeeded, it is often due to detailed and innovative fact- there is a Republican co-sponsor for each of the bills intro- gathering work and implementing creative and aggressive duced in the House, some of which would effectively regu- litigation strategies. Antitrust doctrine matters, but it is late large technology companies. never sufficient. The paradigm of this reality is, of course, In addition, there is substantial interest in regulation in the FTC’s successful hospital merger enforcement program. Europe. In December 2020, the European Commission pro- Much of the innovation of the program was to develop new posed the Digital Markets Act, which would impose extensive litigation strategies and then successfully execute those strat- regulations on some digital platforms, including interopera- egies in courtrooms throughout the country. bility and data-sharing requirements.39 Similar to FTC Chair Important litigation innovations also came from how Khan, European Commission Executive Vice President Mar- the attorneys at the Antitrust Division and the FTC prose- grethe Vestager explained that she thought that regulation was cuted unilateral effects cases, which substantially increased necessary because antitrust enforcement was not sufficient.40 the agencies’ win rate. For example, Antitrust Division Whether Congress will legislate, or the administration and FTC attorneys deemphasized customer testimony in will adopt, competition-focused regulations is uncertain. favor of aggressive cross-examinations of the parties’ wit- But the Biden administration’s interest in regulation will nesses in their affirmative case. The Antitrust Division produce effects right away. Many companies will approach also used timing agreements to incentivize the parties to the administration to advocate for new rules. Businesses, produce documents quickly from key executives and then whether they favor or oppose regulations, will need to pre- took litigation-style depositions of those executives during pare to respond offensively or defensively. Ironically, the the investigation to obtain a transcript suitable to use on DOJ and the FTC could serve as the best place for com- cross-examination at trial.45 panies to express concerns that proposed new federal regu- Similarly, companies (and their counsel) that lost gov- lations could reduce competition and impede enforcement ernment antitrust litigation challenges implemented new efforts. Over the years, the antitrust agencies have actively strategies that enabled them to win subsequent cases. For engaged in “competition advocacy” that critiqued new regu- example, companies decided not to sponsor economic mod- lations that limit competition. els that purported to show how a market performed and Businesses will also need to plan for the possibility that instead showed that the government’s models did not accu- new competition-oriented regulations will implicate the rately represent the facts on the ground. often messy, and litigation-intensive, preemption and anti- We have not reached the end of history in developing trust preclusion doctrines, as happened in the Credit Suisse and implementing better tools to investigate, prosecute, and Trinko cases. Companies have used these doctrines and defend antitrust cases. The current enforcement actions to block public and private antitrust enforcement on the against large technology companies, with presumably more ground that regulations govern the conduct at issue and to come, will produce new strategies for handling high-pro- “displace” the antitrust laws. In Credit Suisse, the Supreme file antitrust enforcement matters. The reality (unsettling Court held that the securities regulations implicitly pre- for some) is that these strategies, and how well they are cluded the application of the antitrust laws to investment executed, could have a greater impact on the outcomes of banks that allegedly formed syndicates to help execute initial future antitrust enforcement actions than will changes to public offerings.41 And most famously, in the Trinko case, a the antitrust laws. ■

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20 Hemphill & Wu, supra note 17, at 1882 (footnote omitted). 1 At last count, the “schools” of antitrust are: Neo-Brandeisian, Chicago, 21 The phrase “top of the pyramid” comes from Tom Wolfe’s The Right Stuff Neo-Chicago, Post-Chicago, and Harvard. (1979). See, e.g., Tom Wolfe, The Right Stuff 351 (Farrar, Straus, and 2 Credit for the title of this article goes to my friend Larry Bernstein who Giroux ed. 2008). hosts the program What Happens Next In 6 Minutes. Mr. Bernstein started 22 The “dent in the universe” phrase is attributed to Steve Jobs. See Wal- the program in March of 2020 in response to the Covid-19 pandemic. See ter Isaacson, Steve Jobs: A Biography 92, 112 (Simon & Schuster ed. What Happens Next in 6 Minutes, https://www.whathappensnextin6min 2011). utes.com/. 23 See Deirdre Carroll, European Commission Publishes Guidance Paper on 3 See Richard A. Posner, Antitrust Law 39–40 n.15, 41 (2d ed. 2001). Member State Referrals for Merger Review Even Where National or EU 4 See Brown Shoe Co. v. United States, 370 U.S. 294, 333 (1962) (“[W]e Thresholds Are Not Met, Wilson Sonsini Alert (Apr. 8, 2021), https:// must consider its probable effects upon the economic way of life sought www.wsgr.com/en/insights/european-commission-publishes-guidance-pa- to be preserved by Congress. Congress was desirous of preventing the per-on-member-state-referrals-for-merger-review-even-where-national-or-eu- formation of further oligopolies with their attendant adverse effects upon thresholds-are-not-met.html. local control of industry and upon small business. Where an industry was 24 Eur. Comm’n, Guidance on the application of the referral mechanism set composed of numerous independent units, Congress appeared anxious to out in Article 22 of the Merger Regulation to certain categories of cases, preserve this structure.”) (footnote omitted). 2021 (C 2021), ¶ 6, https://ec.europa.eu/competition/consultations/ 5 Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execu- 2021_merger_control/guidance_article_22_referrals.pdf. tion 1 (2005). 25 Eur. Comm’n, Daily News 20/04/2021 (Apr. 20, 2021), https://ec.europa. 6 Nat’l Collegiate Ath. Ass’n v. Alston, Nos. 20-512, 20-520, slip op. at 9 eu/commission/presscorner/detail/en/mex_21_1846 (“The European (2021) (citing Ohio v. American Express Co., 138 S. Ct. 2274, 2284 (2018) Commission has accepted the requests submitted by Belgium, France, (internal citations omitted) (internal quotation marks omitted)). Greece, Iceland, the Netherlands, and Norway to assess the proposed 7 Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust acquisition of GRAIL by Illumina under the EU Merger Regulation. . . . Counterrevolution and Its Discontents, 11 Harv. L. & Pol’y Rev. 235, 236 Illumina cannot implement the transaction before notifying and obtaining (2017). clearance from the Commission.”). 26 8 See Tim Wu, After the Consumer Welfare, Now What? The “Protection of Com- Press Release, Maribeth Petrizzi, Bureau of Competition Director, State- petition” Standard in Practice, CPI Antitrust Chron. 5–6 (Apr. 2018); see ment of FTC Acting Bureau of Competition Director Maribeth Petrizzi on also Christine S. Wilson, Commissioner, U.S. Federal Trade Commission, Bureau’s Motion to Dismiss Request for Preliminary Relief in Illumina/ Welfare Standards Underlying Antitrust Enforcement: What You Measure GRAIL Case (May 20, 2021), https://www.ftc.gov/news-events/press- Is What You Get, Remarks at George Mason Law Review 22nd Annual Anti- releases/2021/05/statement-ftc-acting-bureau-competition-director- trust Symposium, at 9–10 (Feb. 15, 2019). maribeth (“At the time, a district court order was necessary to prevent the parties from consummating their merger . . . . Now that the European 9 Lina Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 743–44 (2017) Commission is investigating, Illumina and GRAIL cannot implement the (footnotes omitted). transaction without obtaining clearance from the European Commission.”). 10 See Wu, supra note 8, at 5. 27 United States v. Sabre Corp., 452 F. Supp. 3d 97 (D. Del. 2020). 11 Id. at 7, 8. 28 See Competition and Mkts. Authority, Anticipated Acquisition by Sabre 12 Id. at 7. Corporation of Farelogix Inc. Final Report (Apr. 9, 2020) [hereinafter 13 Id. at 9 (emphasis added). CMA Final Report], https://assets.publishing.service.gov.uk/media/5e8 14 See, e.g., FTC v. Staples, Inc., 970 F. Supp. 1066, 1090 (D.D.C. 1997) f17e4d3bf7f4120cb1881/Final_Report_-_Sabre_Farelogix.pdf. (“[T] he Court also finds that the defendants’ projected pass through rate— 29 Press Release, Statement from Assistant Attorney General Makan Delra- the amount of the projected savings that the combined company expects him on Sabre and Farelogix Decision to Abandon Merger (May 1, 2020), to pass on to customers in the form of lower prices—is unrealistic. . . . https://www.justice.gov/opa/pr/statement-assistant-attorney-general- [T]he evidence shows that, historically, Staples has passed through only makan-delrahim-sabre-and-farelogix-decision-abandon (“The United King- 15–17%.”). dom’s CMA decision to block Sabre’s acquisition of Farelogix confirms our 15 U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines view that the merger was anticompetitive.”). §§ 4 & 6 (2010), http://ftc.gov/os/2010/08/100819hmg.pdf. 30 The phrase “feel the need for speed” comes from the 1986 film Top Gun. 16 Albert Einstein famously stated that “[God] does not play dice” with the See Top Gun (Paramount Pictures 1986). universe. See Walter Isaacson, Einstein: His Life and Universe 335 31 See, e.g., Makan Delrahim, It Takes Two: Modernizing the Merger Review (Simon & Schuster ed. 2007). Process (Sept. 25, 2018), https://www.justice.gov/opa/speech/file/ 17 C. Scott Hemphill & Tim Wu, Nascent Competitors, 168 U. Pa. L. Rev. 1096326/download (“We can expedite our review without compromising 1879, 1909 (2020). quality[].”). 32 18 Bill Baer et al., Restoring Competition in the United States 13, Washington U.S. Dep’t of Justice, Comment, Canadian Pac. Ry. Ltd., Finance Dkt. No. Center for Equitable Growth (Nov. 2020) (emphasis added), https:// 36500 (STB 2021), at 7 (Apr. 12, 2021), https://www.justice.gov/atr/ equitablegrowth.org/wp-content/uploads/2020/11/111920-antitrust-re- page/file/1387311/download. port.pdf. 33 Khan & Vaheesan, supra note 7, at 280–81. 19 See Press Release, Congressman David Cicilline (RI-01), House Lawmak- 34 This question is drawn from Stanley Kubrick’s 1964 film Dr. Strangelove ers Release Anti-Monopoly Agenda for a Stronger Online Economy: Oppor- or: How I Learned to Stop Worrying and Love the Bomb. See Dr. Strange- tunity, Innovation, Choice (June 11, 2021), https://cicilline.house.gov/ love (Columbia Pictures 1964). press-release/house-lawmakers-release-anti-monopoly-agenda-stronger- 35 See Chamber of Comm. of the U.S., America’s Antitrust Laws—Myth vs. online-economy-opportunity; Press Release, Senator Amy Klobuchar (MN), Facts, https://www.uschamber.com/sites/default/files/antitrust_myth-vs- Senator Klobuchar Introduces Sweeping Bill to Promote Competition and facts-final.pdf (“Antitrust is designed to restore the self-policing power of Improve Antitrust Enforcement (Feb. 4, 2021), https://www.klobuchar. competition in the market. Regulation on the other hand is about imposing senate.gov/public/index.cfm/2021/2/senator-klobuchar-introduces- an outcome in the market.”). sweeping-bill-to-promote-competition-and-improve-antitrust-enforcement.

80 · ANTITRUST 36 Rohit Chopra & Lina M. Khan, The Case for “Unfair Methods of Competition” 41 Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264 (2007). Rulemaking, 87 Chi. L. Rev. 357, 359 (2020). 42 Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 37 Amazon’s Antitrust Paradox, supra note 9, at 798. 411–13 (2004). 38 Biden v. Knight First Amendment Inst. at Columbia Univ., No. 20–197593, 43 See Theodore Roosevelt, Citizenship in a Republic, Speech at the Sorbonne (slip. Op. at 6) (Apr. 5, 2021) (Thomas, J., concurring). (Apr. 23, 1910), https://www.leadershipnow.com/tr-citizenship.html. 39 Eur. Comm’n, The Digital Markets Act: Ensuring Fair and Open Digital Mar- 44 See Garrett Downing, Kenny Mayne: Football/Broadcasting (1978–82), Las kets (Dec. 14, 2020), https://ec.europa.eu/info/strategy/priorities-2019- Vegas Sun (Mar. 9, 2009), https://lasvegassun.com/news/2009/mar/ 2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open- 09/kenny-mayne-football-broadcasting-1978-82/. digital-markets_en. 45 See Joshua H. Soven & Justin Epner, After the Obama Administration: What 40 See Margrethe Vestager, Statement by Executive Vice-President Vestager on Comes Next in Antitrust Merger Enforcement Policy?, Antitrust, Fall 2017, the Commission Proposal on New Rules for Digital Platforms (Dec. 15, 2020), at 88. https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_ 20_2450.

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