New Myths and Old Realities: Recent Developments in Antitrust Enforcement

Friday, January 1st, 1999 at 12:00 am by William J. Baer & David A. Balto
William J. Baer & David A. Balto, New Myths and Old Realities: Recent Developments in Antitrust Enforcement, 1999 Colum. Bus. L. Rev. 207

Antitrust enforcement plays an increasingly prominent role in today’s business climate. The Antitrust Division of the Department of Justice and the Bureau of Competition (the “Bureau”) of the Federal Trade Commission (“FTC”) face increasing challenges both from a tremendous increase in the number of mergers and from new forms of competitive issues arising in an increasingly high-tech economy. In the last several years, both antitrust agencies have reviewed a record number of proposed mergers and litigated a number of merger and non-merger cases. There have also been several important court decisions, such as California Dental Association and Nippon Paper, in cases brought by the enforcement agencies. Following the recommendation of the FTC and the Justice Department, the Supreme Court overturned the rule of its Albrecht decision, and eliminated the per se rule for vertical maximum price fixing. Finally, in a series of controversial and well-contested merger cases, the FTC successfully challenged the merger of Staples and Office Depot, as well as two mergers in the drug wholesaling industry. This Essay reviews these trends in antitrust enforcement. Part II offers a brief overview of the Commission’s merger enforcement program. Part III addresses ten “myths” that seem to have developed concerning present-day government antitrust enforcement. After critically evaluating each, the Essay concludes that these myths are either unfounded or contradicted by recent agency actions. Recent merger enforcement actions and recent challenges to anticompetitive conduct are more fairly seen as the product of applying antitrust doctrine to the demands of the economy of the late twentieth century, than as a departure from established doctrine or practice.

Author Information

Mr. Baer is the Director of the Bureau of Competition, and Mr. Balto is the Assistant Director of the Office of Policy and Evaluation, Bureau of Competition, Federal Trade Commission