Technological Change and Merger Policy’s Third Era

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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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