Maurice Stucke, Oct 31, 2011
This flexibility in legal standards is attractive to testifying experts, lobbyists, and antitrust counsel who “know” and “can work” with the FTC and the DOJ to get the merger through. It is far from desirable for corporate executives who need to know what is legal or illegal, as well as customers and competitors who need to know what is reasonable and unreasonable competitive behavior.
So the recent antitrust activity is refreshing. But what would be especially refreshing is if the courts provided clearer antitrust rules than its current rule of reason. Clearer standards on what is or is not permissible will yield greater predictability, objectivity, and transparency in antitrust enforcement. While companies and customers would benefit, lobbyists might have reason to complain.