The Network Law Review is pleased to present a symposium entitled “The Future of the Neo-Brandeis Movement”, asking experts the following question: will the neo-Brandeis movement have a lasting impact on antitrust law?
This contribution is signed by Herbert Hovenkamp (University of Pennsylvania Carey Law School and the Wharton School). The entire symposium is edited by Thibault Schrepel (Vrije Universiteit Amsterdam) and Anouk van der Veer (European University Institute).
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Introduction: Identifying Monopoly
In his 1963 Philadelphia Bank merger opinion, Justice Brennan defended its approach as “fully consonant with economic theory.”[1] “So complex an economic-legal problem as the substantiality of the effect of this merger” entailed that “little weight” be given to the lay testimony of competing small bankers, he wrote.[2] In this case, “small companies may be perfectly content to follow the high prices set by the dominant firms, yet the market may be profoundly anti-competitive.”[3] Rather, the “test of a competitive market is not only whether small competitors flourish but also whether consumers are well served.”
Justice Brennan’s opinion said a mouthful, particularly in light of the Supreme Court’s Brown Shoe decision only a year earlier. It also leaves the Neo-Brandeis antimonopoly movement in an indefensible spot, in particular its opposition to economics in antitrust and its lack of enthusiasm for consumers. First, the Supreme Court claimed an approach consistent with economic theory. For that the testimony of competing small bank managers was less important than analysis of the merger’s impact on consumers. Given that the small banks would benefit from the merging firms’ higher prices, they were biased witnesses. Rather, the Philadelphia Bank opinion cited seven economists, more than any previous Supreme Court antitrust decision.[4] Justice Brennan also declared that “competition is our fundamental national economic policy.”[5]
Three years later, Chief Justice Earl Warren reiterated that antitrust law declares a “fundamental national economic policy”,[6] and the Supreme Court and lower federal courts have repeated it many times.[7] The making of antitrust law is an exercise in economic policy making, heavily driven by economic testimony.
With only a few outliers, the Supreme Court has followed prevailing economic theory in deciding substantive antitrust issues.[8] The economics has changed over time, just as science has changed in most areas. The economists cited in the Philadelphia Bank decision were Harvard School structuralists who believed that concentrated market structures led to higher prices, reduced output, and less innovation.[9] Today’s mainstream economists have a somewhat different perspective and better measurement tools. Structure is still relevant but is not the only thing relevant to performance. The fundamental concerns remain the same, however.[10] As the Supreme Court’s Daubert decision requires, antitrust economics is driven by methodologies that should be continuously tested and brought up to date.[11] Successive editions of the government’s Merger Guidelines have reflected these changes.
The neo-Brandeisians, or antimonopolists, rely instead on sixty-year-old doctrine, making the movement one of the most regressive in antitrust jurisprudence and placing it on a collision course with the Philadelphia Bank decision. It recalls Umberto Eco’s iconic novel, The Name of the Rose, where fourteenth-century monks in an unnamed abbey debated whether laughter is permissible.[12] For them, the answer lay in Aristotle’s second book of poetics, concerning comedy, supposedly written some 1600 years earlier but lost. For every serious question one need only consult Aristotle.
Parsing old Supreme Court decisions about questions of fact is the worst way to make antitrust policy. When the Court largely stopped deciding substantive merger cases in 1974, did it intend to freeze merger law into amber, like 130 million-year-old mosquitoes? As in other areas, it permitted the lower courts to continue to develop it, but always with the power to intervene.
Statutory language controls until it is changed, but too many antitrust decisions make factual assertions as law when they were never stated in the statute or even developed in the legislative history. For example, the Brown Shoe decision identified something called “submarkets” that permitted more aggressive merger enforcement by recognizing smaller markets, giving firms a larger market share.[13] Submarkets are not even suggested in the statute’s language and are inconsistent with it. The statute measures merger effects in a “line of commerce” but says nothing about “sub-lines” of commerce. Nor does the term appear in the legislative history. While the Supreme Court cited its earlier duPont decision for the proposition that a “well-defined submarket” may exist, the duPont decision never even used the term.[14] BrownShoe just made it up. How does that square with the Supreme Court’s repeated admonitions that market definition is a question of fact?[15]
Brown Shoe also defined markets by reference to “reasonable interchangeability” without considering the margins at which interchangeability occurs.[16] The result, commonly known today as the “Cellophane fallacy,” frequently protects monopolists.[17] As they raise prices, their product becomes increasingly interchangeable with that of rivals. The Court also declared – without citation – that internal expansion yields greater output than mergers do.[18] That is a fact question, highly sensitive to the circumstances. It also declared that relevant markets can be defined by “unique production facilities,” “specialized vendors,” or “distinct customers.” All are incorrect, more often than not. Often, the same product is produced in numerous facilities owned by as many firms, often using different technologies. That was true in the Brown Shoe case itself. Alternatively, often, a firm makes multiple non-competing products in the same plant. As for “specialized vendors” or “distinct customers,” they are more likely to sell or purchase complements rather than competing goods. For example, a specialty vendor of farm equipment might sell tractors, plows, and irrigation pumps – but that does not put these three products into the same market.[19] The so-called Brown Shoe factors are wrong in most cases.
A serious antimonopolist would want to use a market test that is capable of identifying monopolies with tolerable accuracy. The “hypothetical monopolist” (HMT) test that the 2023 Merger Guidelines describe[20] and many courts employ does just that. Its methodology identifies the smallest grouping of sales for which a monopoly price can be charged for a significant time. The Brown Shoe list of factors is rarely able to show that.
The HMT requires pricing data and some analysis to apply. One cannot just eyeball it. If the data are not available, the courts sometimes revert to the Brown Shoe factors. That is an area in which merger evaluation is concerned with the threat of monopoly and could be improved. For example, how does one calculate the risk of monopoly in two-sided markets where the price on one side is zero or where the market is for innovation of products that are not yet being sold on the market?[21] The HMT may not work, but the Brown Shoe factors will do no better.
What accounts for such massive analytic shortcomings in the antimonopoly movement’s analysis of markets and market power? The most likely explanation is a reactionary hostility toward economics, perhaps resting on the mistaken belief that economics always favors defendants. The antimonopoly movement draws much of its wisdom from an imagined vision of an earlier period in which economics did not have a role.[22] That period never existed. Indeed, the acknowledged use of economists in antitrust litigation dates back at least to 1915,[23] and the Clayton Act’s probabilistic harm test strongly reflects the influence of marginalist economist John Bates Clark.[24]
Antitrust Economics and Uncertainty
The United States antitrust statutes state their concerns in economic terms. The statutes reach conduct “in restraint of trade,” which refers to market output reductions[25] as well as acts that “monopolize” or whose “effect may be substantially to lessen competition.” The Cayton Act added a probabilistic effects test. Its “where the effect may be” language invites both predictions of reasonably anticipated consequences and metering. Brown Shoe interpreted that language to require “probabilities, not certainties.” Further, “no statute was sought for dealing with ephemeral possibilities.” Rather, it reached mergers with a “probable anticompetitive effect.”[26] In a vertical merger case, it stated that the statute requires a “reasonable probability” that an acquisition “may lead to a restraint of commerce or tend to create a monopoly….”[27] Or in Continental Can, two years later, the test was “whether the merger […] will have probable anticompetitive effects within the relevant line of commerce.”[28] In General Dynamics, the Supreme Court observed that market concentration data were an indirect estimate for assessing competitive consequences following a merger.[29] Such statistics were useful only to the extent that they enabled a prediction of “probable future ability to compete.”[30]
As Justice Brennan’s Philadelphia Bank opinion made clear, this assessment of probabilities is an invitation to economists, particularly when evaluation depends on an estimate of market effects or predictions of future events. Outcomes can later be tested against actual results.
Potential competition merger cases under the Clayton Act came into prominence during a ten-year period (1964-1974). After that, the Supreme Court lost interest, concluding that they required excessive speculation. These cases invited even more assessment of probabilities because they required the prediction of firm movements that had not yet occurred. For example, Penn–Olin concerned a joint venture created through the formation of a new corporation. The Supreme Court remanded a government merger challenge, instructing the district court to determine whether there was a “reasonable probability” that both of the merging firms would have entered individually had the merger route not been available.[31]In the Marine Bancorporation case, it dismissed a complaint upon a finding of “no reasonable probability” that a firm would have entered de novo had the merger route been unavailable.[32] Rather, it noted the government’s case came closer to showing “ephemeral possibilities” rather than “probabilities.”[33]
In the 1980s, the probable effects language even migrated into the Sherman Act, which does not use probabilistic effects language. For example, in the Jefferson Parish tying case, the majority concluded that the “application of the per se rule focuses on the probability of anticompetitive consequences”[34] as it did in the 1984 NCAA decision.[35] In the Brooke Group predatory pricing case, illegality was made to turn on whether there was an “inference of probable recoupment.” This required a market analysis to determine the probability that a predator might enjoy a sufficient period of monopoly prices after the predation campaign ended.[36]
These decisions and many others illustrate how deeply the Supreme Court has embedded economic probability assessments into antitrust enforcement. Measuring probable effects requires a forward-looking metric. Developing it fell mainly to the lower courts and depended heavily on expert testimony. The metrics of such predictions are largely the business of economics.
Efficiency and Waste
An important task of economics is the pursuit of “economy.” In antitrust policy, this means encouraging business practices that reduce costs and tend toward competitive rates of output, pricing, and innovation. Among the definitions of economics, Lord Robbins offered one that seems particularly relevant: economics is “the science which studies human behaviour as a relationship between ends and scarce means which have alternative uses.”[37] Wealth or resources are never as plentiful as we want them to be, so we must make choices. Antitrust covers that portion of the economy in which competitive markets are the goal. Output reductions or price increases are the metrics by which harm is measured.
Justice Brandeis understood these concerns when he observed in the Chicago Board of Trade (CBOT)[38] and Standard Oil[39] cases that the government never attempted to prove an output reduction. CBOT challenged a pricing rule intended to shift sales away from after-hours trading onto the Board’s open trading floor. Standard Oil was a challenge to a technology-sharing joint venture. Both were well-designed efforts to make their particular markets work better, and both resulted in stimulating rather than suppressing output. As Justice Brandeis concluded, the joint ventures challenged in those cases did not restrain trade.
One of the most troublesome features of the antimonopoly movement is its disparaging attitude toward resource savings. The impulse appears to be purely reactionary. Robert Bork had argued without proof that most antitrust challenges were actually attacks on business efficiency.[40] The reactionary response is that efficiency is irrelevant.
This response shows up in various ways. One is its insistence, with no evidence, that mergers never produce efficiencies. In fact, the Brown Shoe case itself acknowledged that mergers produced efficiencies but then condemned them for that very reason, even acknowledging that “occasional higher costs and prices might result” when mergers are condemned.[41]
Brown Shoe led to a string of lower court decisions in the 1960s and 1970s that found merger efficiencies readily but condemned the mergers because their lower costs or product improvements injured rivals who were not able to match the efficiencies.[42] The message was not only that mergers can lead to more efficient use of resources but that they should be condemned for that very reason. Even in highly concentrated markets, the ratio of price-increasing to price-reducing mergers is roughly even, indicating that resource savings from mergers are common. The problem is identifying the particular ones. That requires economic analysis of anticompetitive effects as well as “retrospective” studies examining the consequences of previous mergers.[43]
A second claim is that the rule of reason should be jettisoned in favor of per se rules, even for practices that have been shown to harm competition only a small portion of the time. Antimonopolists’ promiscuous embrace of per se rules is one of its most extreme assaults on the use of sensible metrics in antitrust.
The rule of reason, as currently applied, has a metrics problem of its own. The most harmful Supreme Court decision is California Dental, where the Supreme Court rejected the FTC’s attempt to condemn a dental association’s limitations on price and quality advertising. It was exactly the kind of market where such advertising could be valuable and pro-competitive.[44] A sensible repair would give plaintiffs a much lighter burden of proof at the front end and then require the defendant to justify its practices.[45]
The correct answer is not to make practices such as tying per se unlawful. The bulk of tying arrangements reflect technological change, metering, reductions in joint costs, or quality control. They are increasingly an element of product design in digital markets.[46] They can occasionally be anticompetitive. Another offender is maximum resale price maintenance, which is used in most cases to police the conduct of isolated dealers who face little competition and can charge monopoly prices. The use of maximum RPM is almost never anti-competitive.
The call for expansive per se rules covering these practices could not possibly be based on evidence that these are output-reducing or price-increasing as a general matter or even a significant percentage of the time. The idea that mergers never create efficiencies is pure ideology, masking a complete lack of evidence.
Antitrust enforcement generally faces the same metrics problem. Too little enforcement fails to reach some monopolistic practices. Output is lower, and prices are higher as a result. Too much antitrust enforcement leads to surprisingly similar results.[47] Output is too low because firms are denied the ability to compete effectively. Overenforcement may lead to smaller firms, but both consumers and labor will suffer. To illustrate, it is quite possible that the government is correct when it states that it is stopping more mergers today than it did in the past.[48] But that is the wrong question to ask. It should be stopping more anti-competitive mergers while permtting beneficial ones. For example, while it stopped the JetBlue/Spirit Airlines merger, the opinion approving the injunction acknowledged that the benefits of that merger very likely exceeded the costs.[49] If true, that should be reckoned among the failures rather than the successes of merger policy.
Effects on prices or market output remain the best metric for evaluating enforcement. We already do this in merger policy to the extent that we rely on retrospective studies that consider mainly what happens to pricing in the wake of mergers. In other areas, enforcement policy must consider costs and benefits. For example, many of the aggressive antitrust actions against the large tech platforms today are wrong-headed. They pursue too many practices that are either harmless or beneficial, and at an enormous cost that sucks resources away from more promising enforcement actions.
Conclusion
Antitrust economics supplies a metric for assessing actions thought to injure competition. It can help policymakers evaluate the competitive consequences of practices such as mergers, tying, and other vertical restraints or aggressive pricing. It has also become important for determining causation and estimating damages. Finally, it helps antitrust enforcers stay on the line between over- and under-enforcement.
The metric that economics provides is not perfect, and measurement is often difficult. In some cases, the relevant data are not available. Nevertheless, the tools it offers are the best that we have and certainly better than simple, relentless expansion or contraction. For example, a policy of condemning too few mergers is costly because it facilitates too much monopoly, but a policy of condemning too many denies society the benefit of economically valuable mergers. Finding the correct balance is certainly more difficult than a policy of either condemning everything or letting everything go, but it is essential nonetheless.
Neo-Brandeisians are not the only people who have failed to meter. One particularly damaging example was Supreme Court Justice Frankfurter’s conclusion that “tying agreements serve hardly any purpose beyond the suppression of competition.”[50] The decision in which he wrote it was not about tying at all but rather exclusive dealing. The government’s brief had argued that tying was less exclusionary than exclusive dealing. Tying of a gasoline pump to gasoline could be lawful, the government acknowledged, because dealers were free to have additional untied pumps as well.[51] That could not happen under the exclusive dealing agreements being challenged because they prevented stations from selling any gasoline except Standard’s.
The legislative history of §3 of the Clayton Act, the relevant provision, showed that it was originally drafted as a per se prohibition against tying and exclusive dealing. It was amended in response to the objection of several members of Congress that these practices were often beneficial.[52] Nevertheless, Justice Frankfurter’s careless statement in dicta led to a damaging rule that undermined sensible tying law for decades. Its lingering effects have still not disappeared.
One consequence of the antimonopoly movement’s disparaging attitude toward economics is an inability to meter. Its mode of thinking is that more is always better. If the movement is to have a future, it needs to abandon a dogmatic, backward-obsessed populism that seems stuck in the period from around 1935 to 1970 and embrace the metrics of competition more seriously.[53] That entails focusing on things that can be measured and that fall within the range of concerns that the antitrust laws articulate.
Hebert Hovenkamp
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Citation: Herbert Hovenkamp, Antimonopoly Antitrust Metrics, Future of Neo-Brandeis Movement (ed. Thibault Schrepel & Anouk van der Veer), Network Law Review, Summer 2024.
[1]United States v. Philadelphia Nat. Bank, 374 U.S. 321, 363 (1963).
[2]Id. at 367.
[3]Id. at 367 n. 43.
[4]Id., citing throughout: Carl Kaysen and Donald F. Turner, Antitrust Policy (1959) (four times), 133; George J. Stigler, Mergers and Preventive Antitrust Policy, 104 U. of Pa. L. Rev. 176 (1955) (twice); Jesse Markham, Merger Policy Under the New Section 7: A Six-Year Appraisal, 43 Va.L.Rev. 489, 521-522 (1957) (twice); Fritz Machlup, The Economics of Sellers’ Competition 84-93, 333-336 (1952); Joe S. Bain, Barriers to New Competition (1956); Edward S. Mason, Market Power and Business Conduct: Some Comments, 46 Am. Econ. Rev. 471 (1956).
[5]Id. at 372.
[6]Carnation Co. v. Pacific Westbound Conf. 383 U.S. 213, 218 (1966).
[7]Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 421 (1986). National Gerimedical Hosp. and Gerontology Ctr v. Blue Cross, 453 U.S. 378, 388 (1981); United States v. Nat. Assn. Sec. Dealers, 422 U.S. 694, 747 (1975) (White, J., dissenting, joined by Douglas, Brennan, & Marshall); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 733 (1973). See also Gulf States Utilities v. FPC, 411 U.S. 747, 760 (1973) (speaking of “the fundamental national economic policy expressed in the antitrust laws.”) See also Nat. Soc’y of Prof. Eng’rs v. United States, 435 U.S. 679, 695 (1978) (“The heart of our national economic policy long has been faith in the value of competition”).
[8]One outlier is United States v. Topco Assocs., 405 U.S. 596, 622 n. 10 (1972), where Justice Marshall spoke disparagingly of letting “the courts … ramble through the wilds of economic theory in order to maintain a flexible approach.”
[9]E.g., Leonard W. Weiss, The Structure-Conduct-Performance Paradigm and Antitrust, 127 Univ. Pa. L. Rev. 1104 (1979) (structuralism concerned about lower output and higher prices).
[10]Herbert Hovenkamp & Carl Shapiro, Horizontal Mergers, Market Structure, and Burdens of Proof, 127 Yale L.J. 1996 (2018).
[11]Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993); see 2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶309 (5th ed. 2021). On Daubert’s fit with the text of the antitrust laws, see Herbert Hovenkamp, The Antitrust Text, __ Ind. L.J. (2024) (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4277914. As of April 2024, nearly 300 reported federal antitrust decisions cite Daubert.
[12]Umberto Eco, The Name of the Rose (1980).
[13]Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962).
[14]Id., citing United States v. duPont Co., 353 U.S. 586 (1957).
[15]E.g., Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 482 (1992) (market definition is a “factual inquiry”). See also NCAA v. Alston, 141 S.Ct. 2141, 2151 (2021) (courts must “conduct a fact-specific assessment of market power….”);
[16]Brown Shoe, 370 U.S. at 325
[17]After United States v. Du Pont & Co., 351 U.S. 377 (1956) (cellophane in the same market with wax paper and other wrapping materials because customers used them interchangeably). See 2B Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶539 (5th ed. 2021).
[18]Brown Shoe, 370 U.S. at 345 n. 72.
[19]Id. at 325.
[20]See U.S. Dept. of Justice and FTC, Merger Guidelines §4.3.A (2023), https://www.justice.gov/atr/2023-merger-guidelines.
[21]E.g., Illumina, Inc. v. FTC, 88 F.4th 1036, 1050 n. 8 (5th Cir. 2023) (research markets in which no sales had yet been made; reverting to Brown Shoe factors).
[22]See Herbert Hovenkamp, Will Antitrust Become Progressive? (Penn Law working paper, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4784733.
[23]See Frederico Ciliberto, Kenneth G. Elzinga, & D. Daniel Sokol, Economic Analysis in Antitrust Litigation: Empirical Evidence from the Courts, 1809-2018 (SSRN, May 2, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4809691 (referring to United States v. United States Steel corp., 223 F. 55 (D.N.J. 1915).
[24]See Luca Fiorito, When Economics Faces the Economy: John Bates Clark and the 1914 Antitrust Legislation, 25 Rev. Pol. Econ. 139 (2013)
[25]Hovenkamp, Antitrust Text, supra.
[26]Brown Shoe, 370 U.S. at 323.
[27]United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 597 (1957).
[28]United States v. Continental Can, 378 U.S. 441, 458 (1964). See also FTC v. Consolidated Foods Corp., 380 U.S. 592, 598 (1965) (§7 requires an estimate of the “probability of the proscribed evil”).
[29]United States v. General Dynamics, 415 U.S. 486, 498 (1974)
[30]Id. at 503.
[31]United States v. Penn-Olin Chem. Co., 378 U.S. 158, 173 (1964).
[32]United States v. Marine Bancorporation, Inc., 418 U.S. 502, 616-618 (1974)
[33]Id. at 623.
[34]Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 15-16 (1984).
[35]NCAA v. Board of Regents, 468 U.S. 85, 100 (1984) (per se rule appropriate when “the probability that these practices are anticompetitive is … high”).
[36]Brooke Group, Ltd. V. Brown & Williamson Tobacco Co., 509 U.S. 209, 226 (1993), followed in Pac. Bell Tel. Co. v. linkLine Communic., Inc., 555 U.S. 438 (2009).
[37]Lionel Robbins, An Essay on the Nature and significance of Economic Science 15 (1932, rev. 1935).
[38]Bd. Of Trade of Chi. V. United States, 246 U.S. 231 (1918).
[39]Standard Oil Co. v. United States 283 U.S. 163, 176 (1931).
[40]Robert Bork, The Antitrust Paradox: A Policy at War With Itself (1978).
[41]See Brown Shoe, 179 F.Supp. 721 738 (E.D.Mo. 1959), concluding that the result of integration through merger was that the post-merger firm could sell shoes at lower prices or offer better quality for the same price. The Supreme Court affirmed. Brown Shoe, 370 U.S. at 294, 344.
[42]Allis-Chalmers Mfg. v. White Consol. Indus., 414 F.2d 506, 518 (3d Cir. 1969) (condemning merger uniting two components in a steel mill on the theory that a firm able to offer both together would have a competitive advantage); United States v. Wilson Sporting Goods Co., 288 F. Supp. 543 , 551 (N.D.Ill.1968) (merger of sporting equipment and gym equipment manufacturer gave an unfair advantage to a firm now able to sell both, as schools preferred dealing with a single vendor); Foremost Dairies, 60 FTC 944 (1962) (merger gave the firm an unfair advantage because it was now able to sell both milk and ice cream to grocers). For others, see Herbert Hovenkamp, Brown Shoe Merger Policy and the Glorification of Waste (CCI Competition Policy Int’l, Dec. 15, 2023), https://www.pymnts.com/cpi-posts/brown-shoe-merger-policy-and-the-glorification-of-waste/
[43]E.g., Vivek Bhattacharya, Gaston Illanes & David Stillerman, Merger Effects and Antitrust Enforcement: Evidence from U.S. Retail 33, Fig. 7(a) (NBER, 2023), https://www.nber.org/papers/w31123 (examining several mergers in concentrated portions of grocery market; roughly equal numbers led to price increases and price decreases). Accord Annika Stohr, Price Effects of Horizontal Mergers: A Retrospective on Retrospectives, J. Comp. L. & Econ. (May, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3890264.
[44]Calif. Dental Ass’n v. FTC, 526 U.S. 756 (1999).
[45]On this, see Herbert Hovenkamp, Will Antitrust Become Progressive? (2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4784733.
[46]See Daniel A. Crane, Tying Law for the Digital Age, 99 Notre Dame L. Rev. 821 (2024).
[47]See Herbert Hovenkamp, Structural Relief Against Digital Platforms, J. L. & Innov. (forthcoming, 2024),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4616175.
[48]See https://thehill.com/policy/technology/4677465-doj-antitrust-chief-touts-blocked-mergers/
[49]United States v. JetBlue Airways Corp., __ F.Supp.3d __, 2024 WL 162876 (D. Mass. Jan. 16, 2024). For analysis, see Herbert Hovenkamp, The Structure of Merger Law (Penn Carey Law, June 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4851593.
[50]Standard Oil Co. of Calif. v. United States, 337 U.S. 293, 305 (1949).
[51] Brief for the United States, Standard Oil Co. of Calif., 1949 WL 50553 (1949).
[52]See William B. Lockhart & Howard R. Sacks, The Relevance of Economic Factors in Determining Whether Exclusive Arrangements Violate Section 3 of the Clayton Act, 65 Harv. L. Rev. 913, 934 n.63 (1952); and Herbert Hovenkamp, The Antitrust Text, supra.
[53]See Herbert Hovenkamp, Will Antitrust Become Progressive?, supra.
