Originally from:
International Antitrust Law & Policy: Fordham Competition Law 2010 - Hardcover
International Antitrust Law & Policy: Fordham Competition Law 2010 - PDF
Preview Page
Chapter 6
THE UNILATERAL EFFECTS ANALYSIS IN
THE 2010 HORIZONTAL MERGER
GUIDELINES: BEGINNING OF THE END OF
THE AGE OF RESTRAINT?
Kevin J. Arquit*
I. INTRODUCTION
In recent years, there has been a palpable shift in antitrust law away
from the familiar precincts of the Chicago and Harvard schools of law and
economics,1 both of which fundamentally rest on the belief that markets
are, by and large, self-regulating; that markets are relatively quick to selfcorrect;
and that over-enforcement can be counter-productive in that it can
chill potential innovation or competition.2
This shift away from a bias against over-enforcement has taken a
number of forms, and has a wide array of supporters within government,
academia, and (perhaps to a more limited extent) the courts. Generally,
this trend is evident in the Obama administration’s appointment of
prominent legal and economic proponents of “behavioral economics” (the
notion that economic actors are not consistently rational utilitymaximizers,
but display certain consistently irrational behaviors) to top
posts,3 as well as the push for greater regulation throughout the economy
Kevin J. Arquit, Simpson Thacher & Bartlett LLP, New York