Professors Richard J. Gilbert and Hillary Greene
83 Geo. Wash. L. Rev. 1919
Published in Connection With the Law Review’s 2014 Symposium “The FTC at 100”
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.
