The failing firm defense is the fortune cookie of merger analysis: prevalent in merging parties’ advocacy, tantalizingly full of potential, but in the end, stale and unsatisfying. However, the failing firm defense is not the only way for merging parties to explain the context of their transaction to the Antitrust Division of the Department of Justice and the Federal Trade Commission (the “agencies”) or to courts. Merging parties typically can achieve more favorable outcomes by presenting f
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