Read the 10 best academic and business antitrust articles published in 2012!

Nominated by Julie Brill, Alexander Italianer, Frédéric Jenny, Bill Kovacic, Bruno Lasserre

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Merger enforcement across political administrations in the United States

Howard Shelanski, Jesse Solomon and Ronan P. Harty, Concurrences N° 2-2012, n°45073, 15 May 2012

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Bill Kovacic has written persuasively that the political rhetoric of antitrust has often been at odds with what the antitrust agencies have actually done and with any meaningful assessment of their performance. This article follows Kovacic by analyzing data from the FTC’s and the DOJ’s review of mergers over thirty years, from 1981 through 2010, for correlations to shifts in political administration. We analyze historical trends from one administration to the next with regard to five metrics: (1) agency budgeting, (2) the number of transactions reported under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (3) requests for and grants of early termination of the waiting period, (4) the issuance of second requests by the agencies, and (5) transaction challenges brought by the agencies. These data demonstrate some interesting, and at times counterintuitive, relationships between specific administrations and merger review and enforcement activity. On a more granular level, these data also demonstrate some trends regarding how merger review and enforcement statistics have been sensitive to change over from one agency chief to the next within administrations. By some measures, enforcement activity appears to decline during Republican administrations and increase during Democratic governments. At the same time, there are other measures that contradict that pattern. Our analysis therefore supports Kovacic’s skepticism about any simple relationship between antitrust enforcement and political administration and reinforces his call for moving beyond activity measures in judging the success of an administration’s antitrust policies.

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