5.The Antitrust Division needs to focus on both macroeconomic and microeconomic analysis. The rapidly changing global economy can radically impact the competitive environment. For example, a U.S. firm may experience competitive disadvantage against a foreign firm due to the effects of currency, labor supply or tax, trade or regulatory environments. All of these effects are not considered as part of current merger analysis.
6. The Antitrust Division needs to recognize that many U.S. companies are subject to merger review in multiple jurisdictions, typically including the European Community and numerous other foreign countries. It needs to be the responsibility of the Department of Justice - working through our trade representative - to rationalize this system and to work out a protocol for review. It is unacceptable to force U.S. firms to navigate numerous, often contradictory regulatory regimes.
7. The regulatory burden of merger review needs to be closely monitored. Because of the manner in which the Hart-Scott-Rodino law is structured, there are incentives for the Antitrust Division to overregulate. After the relatively simply HSR filing, the division has 30 days to either clear a merger or seek a longer review. Once the division decides to seek a longer review, the so-called second request process is burdensome, typically tying management in knots for months and costing millions of dollars.
Given the overwhelming number of mergers that face extended scrutiny from the Antitrust Division, many that could very well be beneficial in a larger economic context are simply abandoned. Most companies cannot afford the time, money and damage to their reputation when confronted with an extended fight with the government. The result: Many pro-competitive mergers critical to our economic growth and competitiveness are never consummated or never proposed in the first place.
Antitrust analysis should not be undertaken exclusively by a tight-knit monopoly of lawyers posing as enforcers. That's a monopoly game that should not pass the word "Go" in this or any other pro-growth administration.