Taking Stock of Merger Enforcement Under the Biden Administration - DIANA L. MOSS

carried forward? What is the impact of the cases The Biden DOJ and FTC have brought a number lost by the Biden enforcers on legal precedent of monopolization cases under Section 2 of the and will it work against stronger enforcement Sherman Act, with a strong focus on the digital in the future? What are the implications of the sector.4 The Biden DOJ and FTC committed to Biden policy of disfavoring. [...] The waning role of antitrust enforcement over A second reason to take stock of the Biden the last 40 years reflects the pervasive influence approach to merger control is managing the of "Chicago School" conservatism.7 This future of merger enforcement. [...] understated the contributions of the center-left in promoting stronger enforcement.11 This is Public comments on the draft guidelines raised particularly true of the Obama enforcers, who concerns about this approach, especially the successfully enjoined a number of harmful, impact on the transparency of the merger review highly concentrative mergers, including Anthem- process, administrability in. [...] The final version of the guidelines, community, competition advocates, and the issued in late 2023, significantly tempered Neo- public were never formally introduced to how Brandeisian influence.16 the Biden enforcers would do things differently, The reality on the ground reflects a mixed prompting some confusion about both the portfolio of enforcement action. [...] information on their transactions.13 The agencies also issued draft merger guidelines in mid- P5 TAKING STOCK OF MERGER ENFORCEMENT UNDER THE BIDEN ADMINISTRATION However, the DOJ lost its challenge to the This means that Dish will not become the strong vertical merger of UnitedHealth and Change “fourth“ competitor that the Trump DOJ claimed Healthcare, which alleged that the merged its settlement.