Technological Change and Merger Policy’s Third Era

Presentation to Merger Analysis in High Technology Markets Conference 2008. Howard Shelanski, Professor of Law, Georgetown University Law Center.

Changes in Merger Policy Over the Last Century. Evolutionary Changes: Antimonopoly Era (1904-1973), Consumer Welfare Era (1973-2004), Dynamic Efficiency Era (2004-). Cyclical Changes: Merger review has varied in the scope of its objectives: from narrow anti-bigness => broader balance of efficiency and small-business protection => narrow consumer welfare focus => broader balance of static efficiency and innovation. The Antimonopoly Era: Northern Securities Co. v. US (1904). Case initiated the anti-monopoly era of merger review. Established that mergers were within the purview of Section I of the Sherman Act. Coupled with precedent for strict, textual construction of Section 1 (Trans-Mo., 1899), Northern Securitiesswept mergers under the strong statutory prohibition against “everycontract combination . . . or conspiracy in restraint of trade.”



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