Law Commons^™

Developments In Merger Litigation: The Government Doesn't Always Win, Stephen Calkins

Law Faculty Research Publications

"The sole consistency that I can find is that under Section 7, the Government always wins." When this famous antitrust apothegm was pronounced in 1966 by Justice Stewart, dissenting in United States v. Von's Grocery, it had the ring of truth. It is less true today: of the (admittedly few) reported Justice Department merger cases decided since William Baxter assumed responsibility as Assistant Attorney General, the Government has lost all but one. The Federal Trade Commission's court record in merger cases has been substantially better. Even in private cases, usually involving challenges to mergers to which the federal antitrust …