Karen Hoffman Lent, left, and Kenneth Schwartz. Courtesy Photo

Introduction

Fordham Law hosted its 51st Annual Conference on International Antitrust Law and Policy, and Antitrust Economics Workshop from Sept. 11 through Sept. 13, 2024. Conference panelists addressed a broad range of antitrust topics. This article highlights key themes from the event.

Review of Updated Merger Guidelines

In the panel entitled "U.S. Merger Guidelines: The Great Debate, 9 Months Out," participants shared observations and criticism about the 2023 Merger Guidelines and their impact to date. Two central themes of the discussion were the continued role of economics in merger enforcement and the role of the judiciary in construing the guidelines.

Eric Posner, a law professor and research chair at the University of Chicago who briefly worked on the guidelines during his previous stint at the DOJ, commended the agencies for repudiating the 2010 Merger Guidelines, which he felt leaned too heavily on economics and economic assumptions. In his view, such heavy reliance on economics led to underenforcement. Posner observed that the new guidelines provide agencies with more tools and fewer limits to enforce the law, and he was optimistic that the 2023 Merger Guidelines will encourage more efficient merger enforcement. Nathan Wilson, executive vice president of Compass Lexecon, disagreed, stressing that the use of economics is critical to avoid overenforcement and to permit procompetitive transactions to proceed. In Wilson's view, the uncertainty of certain novel concepts in the new merger guidelines chills benign or even procompetitive transactions and, in their enforcement zeal, the antitrust agencies' use of the new guidelines may hinder competition.