Abstract
Most proposed mergers are procompetitive or competitively neutral. A few are anticompetitive and thus forbidden by law. If we were to design an institutional system, from scratch, to identify and prohibit the small percentage of proposed mergers that are anticompetitive, what should such a system look like? The answer depends, in part, upon the goals of the system and the costs of implementation. Presumably, such a system ought to strive for a high degree of accuracy in identifying which mergers are anticompetitive. In other words, it ought to avoid both “false positives” (erroneous condemnations of procompetitive mergers) and “false negatives” (failures to identify and condemn mergers that are anticompetitive), although the optimal ratio of false positives to false negatives depends on the relative harm of each. At the same time, the system ought to minimize cost and delay to the extent possible—both with respect to identifying mergers as anticompetitive, and with respect to remedy.
Recommended Citation
Frankel, Lionel M.
(2008)
"The Flawed Institutional Design of U.S.
Merger Review: Stacking the Deck Against
Enforcement,"
Utah Law Review: Vol. 2008:
No.
1, Article 8.
Available at:
https://dc.law.utah.edu/ulr/vol2008/iss1/8