George Santayana famously remarked that “[t]hose who cannot remember the past are condemned to repeat it.” Forty years ago, Richard Nixon was caught on tape directing how the U.S. Department of Justice and its Antitrust Division chief, Richard McLaren, should handle a pending case that sought to block an acquisition proposed by ITT (a prominent, corporate donor): “My order is to drop the God damn thing — is that clear?…I want something understood, and if it’s not understood, McLaren’s ass is to be out of there within one hour. The ITT thing — stay the hell out of it. Is that clear? That’s an order.…I do not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up.…I don’t like the son of a bitch.”
This year, DOJ brought on an antitrust action to block AT&T Inc.’s proposed acquisition of T-Mobile USA Inc. Shortly on the heels of that lawsuit being initiated, a number of members of Congress — all recipients of generous political donations from AT&T — publicly called on the president to shut down that action in the name of “job creation.” Déjà vu all over again? Assuming the answer to that question is “no,” this article will turn to the relative merits of DOJ’s case and the likely prognosis for its outcome.
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