Antitrust Merger Control as a Regulatory Sandbox

By Daniel Sokol, USC Gould School of Law

The regulatory sandbox model has proven to be relatively effective in reducing regulatory uncertainty and improving investment and innovation outcomes. The antitrust regulatory sandbox is generally a success, even if at the margins there are important changes that can be made. The problem with the current Biden administration approach has been to reduce transparency and to change the procedural norms for the regulatory sandbox. Substantive standards are also at a disconnect with stated standards in the horizontal merger guidelines.

Combined, the breakdown of the antitrust regulatory sandbox threatens innovation, creates additional costs to the merger system, and chills the types of mergers that should be made. To the extent that the agencies want to change antitrust practice, they should do so in a way that modifies the sandbox in a way that does not fundamentally alter its nature.

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