Editor’s Note: This is a follow-up to our blog post, Will the Antitrust Laws Get an Update?
The U.S. Chamber of Commerce says the effort to review antitrust laws is “largely driven by a misleading narrative that the courts, through judicial precedent, have made it almost impossible for government agencies to block problematic mergers.” The “dirty little secret,” the Chamber’s Sean Heather says, is that the laws “work and work reasonably well.” They cite a study released by economists Carl Shapiro and Howard Shelanski. Heather concludes that, the government’s record of blocking mergers makes it hard to credibly support changes to the existing statutory legal standard and shifting the burden away from the government to the merging parties. “The overwhelming majority of mergers are pro-competitive, that is not debatable. For the handful of transactions that raise concerns, the government possess a solid legal framework and influence over the way courts think about economics.”
In a Feb. 12 op-ed for CNBC, antitrust attorney Jan Rybnicek with Freshfields says the calls for antitrust law reform are “well-intentioned,” but “threaten to throw sand in the gears of the economy and to do far more harm than good.” Rybnicek wrote, “Adding friction to M&A activity has the potential to stall capital markets, reduce innovation and investment, and frustrate economic growth. And it does so at precisely the wrong time — when the nation is attempting an economic recovery during an ongoing global pandemic that has upended how we work.” Rybnicek also a senior fellow at the Global Antitrust Institute at Antonin Scalia Law School at George Mason University.
As we wrote in our post, the need to update antitrust laws to promote and protect free and fair market competition in the age of big data, ecommerce, and social networking is a long-time coming.