By Douglas H. Ginsburg (DC Circuit) & Koren Wong-Ervin (Antitrust Partner at Axinn, Veltrop, & Harkrider LLP)
In the last year, officials at the U.S. Antitrust Agencies have taken a number of troubling positions with respect to what is required to challenge consummated mergers under Section 2 of the Sherman Act. These include: (1) the contention that Section 2 presents a “lower bar” than Section 7 of the Clayton Act in that Section 2 requires mere proof that the merger was “reasonably capable of” contributing significantly to the acquisition or maintenance of monopoly power; (2) suggestions that evidence of intent may be used as a proxy for probable harm; and (3) the idea that Section 2 can be used to challenge a series of acquisitions no one of which by itself was problematic but which together form an anticompetitive course of conduct. In this article we explain why these contentions are unfounded.