First Principles for Review of Long-Consummated Mergers
Timothy J. Muris & Jonathan E. Nuechterlein
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Antitrust populists increasingly call on the government to “break up big tech.” But antitrust enforcers would face heavy evidentiary burdens if they sought to break a company up on the premise that a long-consummated merger was unlawful from the outset and should have been blocked years ago. Specifically, they would have to prove (1) that the but-for world would likely be more competitive than the actual world; (2) that their basis for unwinding the merger was sufficiently foreseeable at the time of consummation that the merger could have been challenged then; and (3) that the prospective benefits of unwinding the merger outweigh the prospective harms, including the costs and inefficiencies that often arise from such de-integration.
The combination of these burdens would be difficult for antitrust authorities to meet, and for good reason. It should be hard for the government to unwind any merger that it reviewed before consummation (or shortly thereafter) and elected not to challenge then. Mergers present a complex mix of potential costs and benefits. The antitrust laws empower enforcement authorities to review those costs and benefits promptly and give them appropriate incentives to bring any enforcement action without delay, often before consummation. Those incentives would be weakened if antitrust enforcers could lie in wait while mergers are consummated in hopes of securing more favorable litigation burdens years later.
Cite as
Timothy J. Muris & Jonathan E. Nuechterlein, First Principles for Review of Long-Consummated Mergers, 5 Criterion J. on Innovation 29 (2020).
Tim Muris is a senior counsel at Sidley Austin, focusing on antitrust matters, including mergers, civil investigations, and strategic counseling, as well as on consumer protection issues, including advertising and privacy regulation. He represents clients before the Federal Trade Commission (FTC), the Department of Justice, the European Commission, and other domestic and international agencies. From 2001 to 2004, Mr. Muris served as Chairman of the FTC, where he oversaw the creation of the National Do Not Call Registry, increased antitrust scrutiny of intellectual property issues, and challenged fraudulent and deceptive advertising and health claims to protect U.S. consumers. Previously, he served as Director of the Bureau of Consumer Protection and Director of the Bureau of Competition at the FTC—the only person ever to lead both of the agency’s enforcement bureaus. Mr. Muris has authored more than 100 scholarly articles and books. He graduated from UCLA Law School in 1974 and from San Diego State University in 1971.
Jon Nuechterlein is a partner at Sidley Austin and co-leader of its Telecom and Internet Competition practice, focusing on telecommunications law, antitrust, and appellate litigation. From 2013 to 2016, he served as General Counsel of the Federal Trade Commission. As the FTC’s chief legal officer, Mr. Nuechterlein oversaw the Commission’s appellate litigation activities and provided legal counsel on a range of antitrust and consumer protection issues. In addition to his responsibilities as General Counsel, he also served as Acting Director of the FTC’s Bureau of Competition in several antitrust investigations. His extensive government experience also includes positions as Deputy General Counsel of the Federal Communications Commission, Assistant to the Solicitor General, and law clerk to Circuit Judge Stephen Williams of the U.S. Court of Appeals for the D.C. Circuit and to Justice David Souter of the Supreme Court of the United States. Mr. Nuechterlein has authored numerous scholarly articles and the book, Digital Crossroads: Telecommunications Law and Policy in the Internet Age, with Philip J. Weiser. He graduated from Yale Law School in 1990 and from Yale College, summa cum laude, in 1986.
