USA – ILLINOIS Trends and Developments Contributed by: Craig C. Martin and Matt Basil, Willkie Farr & Gallagher LLP
How did we get here? The 2023 Merger Guidelines
exclude competition. Today’s online platforms can do so much more. They control not just the prices of their services, but the flow of our nation’s commerce and communication.... They are key not only to the ordi - nary citizen’s free expression, but also to how elec - tions are won or lost, and how our news is disseminat- ed or not.” (Id.) In this light, “[c]ensorship,”per former Slater deputy Roger Alford, is thus “the downstream manifestation of monopoly power.” Likewise, Fergu - son believes that the Commission must use the full extent of its authority to protect the free speech of all Americans” after investigating “the structural issues that may have given [Big Tech] platforms their power over Americans’ lives and speech in the first place” (Concurring Statement of Commissioner Andrew N. Ferguson, FTC v 1661, Inc., Matter No. 222-3016 (2 December 2024) (hereinafter, “1661 Concurrence”), positing reining in the “truly terrifying... elites” is “of course” a “traditional concern of antitrust.” FTC Commissioner Mark Meador likewise added that, contrary to the Bork-inspired consensus, the antitrust laws reflect a “firm insistence that the disaggrega - tion of economic power is far more important to the country than efficiency in business. “(Mark R. Meador, Comm’r, Fed. Trade. Comm’n, “Antitrust Policy for the Conservative” 16-18 (1 May 2025).) As such, the Trump Administration’s enforcers argue,” [I]n a sense, it is true that Congress’s intent with the antitrust laws was to promote consumer welfare. It is just that Con - gress’s vision of consumer welfare does not align with Judge Bork’s” – much like the Biden Administration before it argued. (Id.; Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 720-21 (2017) (hereinafter, “Amazon’s Antitrust Paradox”).) Thus, America First antitrust is cognisant of the same structural concerns as its President Biden-era counterpart. In this light, it is unsurprising that Khan counted Vice President Vance (for whom Slater once worked) among her fans, nor is it surprising that Trump Administration members are less deferential to pur - ported efficiencies and defences of mergers and other conduct. While the underlying ideals surrounding the dangers of centralised private power remain para - mount, interpretation is left to the current administra - tion.
“[H]undreds of federal decisions that date to the 1890s... declare... the purpose of the antitrust law to be combatting lower output or higher prices: the indicia of market power” and “nothing in this history suggests that merger policy under Section 7 of the Clayton Act was intended to differ from the other anti - trust laws in this regard.” (See Herbert Hovenkamp, The 2023 Merger Guidelines: Law, Fact, and Method, 65 REV. INDUST. ORG. 39, 45 (2024).) Thus, antitrust scrutiny has long rested upon market power rather than strictly market concentration. (See Cargill, Inc. v Monfort of Colorado, Inc., 479 U.S. 104, 114-116 (1986) and F.T.C. v H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001) (“[M]erger enforcement, like other areas of antitrust is directed at market power.”).) Fur - ther, in many antitrust cases, even “the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.” ( Verizon Communications Inc. v L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) .) The Federal 2023 Merger Guidelines (the “2023 Guide - lines”), however, reflect a growing consensus among antitrust enforcers that the antitrust laws can – and should – expand such understandings and play a larger role in the US economy and society as a whole. It remains to be seen if regulators will convince the courts of the same. The 2023 Guidelines were the linchpin or, perhaps, the embodiment of Biden-era antitrust enforcement. They are, in some respects, a modern-day antitrust paradox, simultaneously constituting a progressive break with long-standing antitrust policy and an “excessively nostalgic” step toward the policies of a “past era”. (See Hovenkamp, supra at 40.) Indeed, to “moderniz[e] merger enforcement,” the 2023 Guide - lines draw from landmark Supreme Court cases of the 1960s and 1970s, like Brown Shoe Co. v United States, 370 U.S. 294 (1962), that are more hostile to mergers than modern jurisprudence. (US Depart - ment of Justice & Federal Trade Commission, Merger Guidelines, Section 2.5.A.2 n.30 (18 December 2023) (hereinafter, “2023 Guidelines”).) Such citations mark a deliberate departure from the theory, advanced in the seminal Antitrust Paradox by Judge Robert Bork and embraced by courts, that “the antitrust laws should
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