Rose Beattie
90 Geo. Wash. L. Rev. 500
The Clayton Act’s vague mandate contemplates a substantial role for courts to determine which acquisitions may substantially lessen competition or tend to create a monopoly. However, following the General Dynamics ruling in 1975, the Supreme Court has been silent on merger doctrine altogether. This hiatus has allowed lower courts to dramatically depart from the Court’s 1960s and 70s jurisprudence, leading to a merger doctrine that has shifted from promoting a market of many small firms to focusing on price effects and market share. As a result of this change in goals, courts and regulators have allowed large technology firms with high market shares to purchase small competitors, leading to increased market concentration. An intent-based test would bridge the chasm between jurisprudence with a focus on market share and nascent competitors with little or no market share. Specifically, this Note recommends that courts adopt a three-part analysis it calls the Facebook Two-Step, which involves a factual inquiry into whether a merger is a nascent competitor acquisition, followed by a dispositive examination of the acquirer’s intent and, only if that is inconclusive, continuing onto the traditional market share analysis. This fact-based test would closely scrutinize, and give deference to, the subjective intent of the acquirer when reviewing acquisitions of dominant firms’ nascent competitors. An intent-based test would prevent the continued dominance and predatory tactics of today’s large technology firms and provide courts and regulators with an avenue to bypass the burdensome market definition issues that have become the hallmark of antitrust litigation.
