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Merging In The Shadow Of The Law: The Case For Consistent Judicial Efficiency Analysis, Jamie H. Moffitt

Vanderbilt Law Review

This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is not readily visible, since almost all proposed merger and acquisition ("M&A") deals are approved. With a shift to more aggressive antitrust policy, however, it is critical that merger review include appropriate weighing of transaction-generated efficiencies-something missing from courts' current antitrust analysis. Although only a small …