this post was submitted on 27 Feb 2024
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Antitrust isn't about just a binary win or loss. A lot of the cases, the FTC/DOJ has been losing because of concessions made by the merging parties. By showing a willingness to fight on mergers, the FTC is influencing the structure of mergers where merging companies are now willing to specifically identify business units to be spun off or sold.
Microsoft/Activision agreed to terms that would prevent their biggest titles from going Xbox exclusive. The Court that allowed the merger to go through specifically cited public statements and legally binding contracts as part of the reason why that deal could go through. The willingness to fight forced Microsoft to preserve some level of competition.
And a lot of the other deals haven't gone through. The FTC successfully blocked the merger between Penguin Random House and Simon & Schuster. The Nvidia/ARM deal was blocked. So was the Amazon/iRobot deal.
The smaller deals they've successfully blocked are also shifting the legal landscape on how courts view these deals. Nobody outside of biotech is familiar with names like Illumina/Grail, but that FTC win is a big deal for applying to a vertical merger between companies operating at different points of a supply chain, rather than a horizontal merger between direct competitors.
The heightened regulatory scrutiny is chilling mergers, even before they get to the point of FTC review, too. So there is some concrete effect here.