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Article
Merging Innovation into Antitrust Agency Enforcement of the Clayton Act
George Washington Law Review (2015)
  • Richard J Gilbert, University of California - Berkeley
  • Hillary Greene, University of Connecticut School of Law
Abstract
The treatment of innovation within the merger context by U.S. Antitrust Agencies continues to evolve, with regard to both general statements of enforcement policy and specific enforcement decisions. The respective merger
guidelines issued by the Department of Justice and the Federal Trade Commission did not consider potential impacts on innovation or research and development until 1982, and then only in passing. By contrast, their joint 2010 Horizontal Merger Guidelines devote an entire section to innovation issues.
This Essay examines both the frequency and manner with which the Antitrust Agencies invoke innovation-based concerns within their respective merger challenges from 2004–2014. It finds that both the DOJ and FTC allege adverse innovation effects in a very large fraction of their respective merger challenges in high-R&D-intensity industries. After exploring possible explanations, the Essay recommends that the Agencies describe their innovation concerns with greater specificity when merger challenges allege harm to innovation.
Publication Date
Fall November, 2015
Citation Information
Richard J Gilbert and Hillary Greene. "Merging Innovation into Antitrust Agency Enforcement of the Clayton Act" George Washington Law Review (2015)
Available at: http://works.bepress.com/richard_gilbert/34/