Back to the Future . . . of Competition – N.Y.U. Journal of Legislation & Public Policy

By James J. Bernstein

April 2, 2023

In the Fall of 2022, the Supreme Court heard oral arguments in Axon, Inc. v. Federal Trade Commission, a case that may conclusively decide the fate of the Federal Trade Commission’s adjudicative authority. While the question presented in Axon is procedural, underlying Axon’s claim is a challenge to the constitutionality of the FTC’s body of administrative law judges. The FTC may bring enforcement proceedings, including merger challenges, before these judges instead of in front of an Article III judge. Given the current administrative law skepticism of the Supreme Court,¹the FTC’s authority in this respect may soon find itself discarded into the dustbin of history.

Loss of this adjudicatory track would be problematic for the promotion of startups and innovation in the technology industry. Since the 1970s, the federal courts’ imposition of a “consumer welfare” standard of competition law has favored a standard of per se legality when the FTC seeks to challenge proposed mergers as anticompetitive under Section 7 of the Clayton Act. The courts’ failure to strictly enforce merger challenges has allowed corporate giants like Meta and Google to dominate a once burgeoning industry. The courts’ approach has also propped up high barriers for new entrants. However, the FTC’s ability to use its own adjudicative proceedings means that it has the opportunity to apply and shift the frameworks away from the consumer welfare standard to help smaller firms—at least while its adjudicative ability stands.

This piece argues that even if the FTC’s ability to litigate in its own forum is reduced, the agency can still bring successful merger challenges in district court by looking to the past. First, this piece examines the courts’ originally stringent line on anticompetitive merger enforcement before the 1970s. Next, this piece discusses merger development after the rise of the Chicago School, and how it has harmed startups and competition in the technology industry. This piece then discusses the role the FTC’s internal adjudications play in providing alternative legal frameworks foreclosed by the district courts. Finally, it argues that by looking to the past’s legal standards, the FTC may pursue a future of greater competitive market forces through the district courts, regardless of how the Court rules in Axon.

I. The old standard on competitive merger challenges: Von’s Grocery

Section 7 of the Clayton Antitrust Act of 1914 prohibits mergers and acquisitions when “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”² However, the standard has become increasingly difficulty to assert in court. For example, in 2021 the District Court for the District of Columbia initially rejected the FTC’s challenge to Facebook’s purchase of the then-startups Instagram and WhatsApp. Although the FTC and various states had claimed that Facebook has a “dominant share of th[at] market (in excess of 60%),” its purchase of those startups did not state a claim for lessening competition.³

Before the 1970s, the federal courts more stringently analyzed the future anticompetitive effects of a merger. The Supreme Court’s 1966 United States v. Von’s Grocery decision summarized the prevailing wisdom well. In the Clayton Act, Congress intended to “protect competition against ever-increasing concentration through mergers.”⁴ Unequivocal in his defense of the Clayton Act’s general protections against monopolies—present and future—Justice Black wrote that “§ 7. . . [looks] not merely to the actual present effect of a merger, but instead to its effect upon future competition.”⁵ Using language that could easily have reflected Silicon Valley’s trend of large corporate competitors purchasing startups, Black added that “Congress sought to preserve competition among many small businesses by arresting a trend toward concentration in its incipiency.”⁶

After Von’s, the Clayton Act “view[ed] mergers among firms of any size in an explicitly suspicious way,”⁷ which the dissenters claimed was a “per se” rule of illegality.⁸ The Von’s Court made clear that Congress designed the antitrust laws of the country in a way that promoted competition and quashed anticompetitive maneuvers before their effects were more prominently felt.⁹ No piece of data was dispositive for undermining a proposed merger; however, Von’s encouraged the judiciary to consider the totality of a merger’s future economic effects in attempting to apply a kind of prescience in practice. The Department of Justice’s 1968 Merger Guidelines issued pursuant to Von’s stipulated that suspect mergers included those “involving a substantial firm and a firm which, despite an insubstantial market share, possesses an unusual competitive potential or has an asset that confers an unusual competitive advantage.” It is this latter category that adequately describes issues related to horizontal mergers between two companies—like established players and startups—that prove anticompetitive. Simply put, presently “insubstantial” or insignificant companies may later be critical in establishing greater market dominance for the acquirer.

II. Changing Standards: the Chicago School and General Dynamics

Bubbling to the surface in the 1970s, scholars largely based at the University of Chicago developed a new theory of antitrust.¹⁰ The “Chicago School,” as it would come to be known, favored clearer lines of harm posed by an anti-competitive merger “in terms as narrow as possible.”¹¹ The primary focus, so says this theory, ought to be the welfare of the consumer, or “behavior that tends toward maximizing output . . . in a way that is consistent with sustainable competition.”¹² As a synthesized summary of the Chicago School, then-Professor Frank Easterbrook’s Limits of Antitrust explained that judges should not decide cases based on ordinary market data. The piece argued that an approach of judicial enforcement “assumes that judges can tap a fount of economic knowledge that does not exist, and it disregards the costs of judicial decision-making.”¹³ For Chicago scholars, judicial enforcement comes with two intangible costs: one, judges make decisions which bind because of precedent; and judicial edicts cripple economic innovation since “wisdom [ultimately] lags far behind the market.”¹⁴ Without mentioning it by name, Easterbrook seems to have had an eye towards Von’s.

The Chicago School’s influence was felt quickly. Notably, the Supreme Court back-tracked slightly from the Von’s holding in the case of United States v. General Dynamics.¹⁵ The Court held that despite the government’s statistical showing that a coal company’s merger would create “increases of market share or market concentration in those industries or markets where concentration is already great,” this did not on its own constitute a finding of future “lessening of competition” under § 7.¹⁶ General Dynamics presaged a shift towards what is now called the “consumer welfare” standard. The logic goes something like the following: if consumers continue to gain in terms of competitive pricing, i.e. prices are not raised “above competitive levels,” then a merger between two companies is not illegal even if it increases the merged company’s market share. By the 1990s “the courts and agencies insisted on proof of specific anticompetitive effects before finding defendants’ conduct illegal” with respect to merger challenges.¹⁷ With this version of enforcement, judges were hesitant to invalidate mergers simply when “an individual firm . . . possessed significant market power.”¹⁸

What makes the post-Von’s proceedings so curious is the fact that it features a judiciary willing to punt on questions of statutory interpretation, save for the most extreme instances. Judges have, in essence, abdicated their role in the legal process with respect to antitrust cases: in failing to take on even the slightest anticompetitive consideration, the judiciary has allowed for some companies to maintain their persistent market dominance at the expense of consumers and innovators.

The courts’ shift away from Von’s Grocery has had significant implications for competition in the technology industry. Today, a technology industry once teeming with startups is largely dominated by corporate giants.¹⁹ Notably, Meta, Google, Apple, and Amazon control outsized shares of the corporate technological market.²⁰ Though these companies doubtlessly promote inventive and innovative technologies, these corporations are also able to maintain the status quo by virtue of their ability to buy up nascent companies that may eventually pose a threat to their position in the market.²¹ As discussed above, the less stringent § 7 standard has allowed companies like Meta to buy up smaller startup competitors without having to face per-merger challenges. As a result, corporate tech giants continue to acquire startups; for example, the FTC has also recently challenged Meta’s acquisition of Within, a virtual reality provider.²² At a base level, the courts’ failure to promote more stringent merger enforcements have, at least in part, contributed to a significant decline in technological startup development by propping up insurmountable barriers to entry.²³

III. The Adaptability of Administrative Agencies

While the Courts’ turn towards a consumer welfare standard has made it harder to challenge mergers, the FTC process of internal adjudication currently provides an alternative. Two agencies handle Clayton Act enforcement: the Department of Justice (“DOJ”) and the Federal Trade Commission. Although there is significant overlap between the agencies, the DOJ may only bring suits in district court. In contrast, the FTC is given a choice as to where its challenge is first heard, either in district court or in front of an administrative law judge:

“[The FTC] may pursue injunctive relief in the federal courts, but it may also file an administrative complaint. An FTC administrative complaint initiates a formal proceeding that is much like a federal court trial but that takes place before an administrative law judge. Evidence is submitted, testimony is heard, and witnesses are examined and cross-examined. If a law violation is found, a cease-and-desist order may be issued.”²⁴

The present structure allows the FTC to receive a verdict on a company’s merger outside of the typical judicial channels. It also, as critics like the Axon plaintiffs have pointed out, gives the agency significant power to shift and develop the law. A body of judges whom the FTC itself appoints is likely more predisposed to ruling in favor of the agency—and even when it does not, the FTC can vote as to whether it agrees with the ruling. Unsurprisingly, the FTC hardly (if ever) does not vote in accordance with its initial assessment of the case.²⁵

Given the state of existing competition law in the district courts, this means that FTC adjudication is increasingly helpful for emerging companies. The FTC can drive antitrust laws away from the Chicago-oriented standards that dominate much of the present antitrust enforcement.²⁶ Simply, “the FTC’s administrative review process is crucial to its ability to reshape the antitrust landscape [and] move away from a consumer welfare standard.”²⁷ In many respects, agency adjudications can develop new glosses or standards on the consumer welfare framework, or may identify shortcomings that the consumer welfare standard has, up to now, failed to identify. For example, “Facebook’s quality has deteriorated over time”²⁸—arguably a form of consumer harm—despite no anticompetitive changes in its prices. Administrative law judges are thus a bulwark for developing companies which may find little refuge in the judiciary. This may also counter the externalities that have resulted from a laissez faire approach to merger enforcement.²⁹ The rate of startup development is at a historic low point, and would-be entrepreneurs seem aware of the fact that the anticompetitive practices of existing companies will either squash their nascent businesses or just lead to their acquisition. As a result, the FTC’s administrative law judges have become critical to promoting technological advancement insofar as they can apply frameworks that district court may be unable—or, more likely than not, unwilling—to apply themselves. Incidentally, Easterbrook’s analysis about the “costs” of judicial do not apply to the precedents of an administrative judge. Liberated from these precedential constraints, administrative law judges may enforce antitrust laws in a way that most benefits startup growth and development.

The Axon case, though, risks neutering the power of the FTC to effectively move antitrust policy in a way that suitably promotes startup growth. The question presented to the Court is whether parties may sue to challenge the constitutionality of an administrative agency’s structure before it reaches a decision on the merits of a case. At present, the question of the FTC’s constitutionality in and of itself is only challengeable after the FTC’s entire administrative proceeding is finished. However, Axon’s real claim is that this internal adjudication structure – where judges appointed and reversible by the FTC make rulings outside of the Article III structure—is unconstitutional because it violates the separation of powers and unduly burdens legal challenges. Axon’s claims threaten core of the FTC’s structure: what most obviously differentiates the FTC from the DOJ in terms of their respective abilities to enforce antitrust laws is how the FTC may pursue civil complaints in front of a distinct body of judges. While a narrower decision of the Court may simply enable parties to sue agencies and raise constitutional claims, there remains a non-zero chance that this Court rules more aggressively and does away entirely with the ability of the FTC’s adjudicative process.

IV. FTC Enforcement Beyond Administrative Law Judges

So, let us assume for a moment that Axon prevails with most extreme form of the case and FTC adjudication is no more. What then for the future of startup development or merger enforcement? Stripped of its own administrative process, the FTC may still pursue cases in federal district court. Importantly, judges do not need to follow the consumer welfare standard. Precedent notwithstanding, judges are, practically speaking, able to chart a new course. Put another way, though the consumer welfare standard is entrenched in the jurisprudence of the Clayton Act,³⁰ the judiciary itself may lead a movement away from the Chicago School standard. As an alternative, district court judges may still apply a version of the Von’s standard—one that examines the trends in the market writ large—to consider whether a behavior is anticompetitive.

A. General Dynamics, Explained

First, the text of the Clayton Act requires judicial scrutiny of mergers. Judges must consider mergers where the effect “may be substantially to lessen competition.”³¹ The use of “may” here mandates some kind of consideration. At bottom, the Clayton Act does not remind judges to consider the effects of Easterbrook’s costs; rather, it offers implicit instructions to examine a merger.³² Indeed, the Von’s majority wrote that section 7 “requires . . . a prediction of [a merger’s] . . . impact upon competitive conditions in the future.”³³ Judges must, then, evaluate the future effects of a given merger, not just how they presently influence, say, prices for consumers.

Second, although General Dynamics dealt a supposed blow to Von’s trend, its holding is compatible with Von’s, and offers some insight into how a neo-Von’s approach may look. General Dynamics represents the use of similar kinds of extratextual assumptions or facts that Von’s had used—it just rules against the government in a key way.³⁴ What undergirds the opinion is a decision to “effectively [establish] a more comprehensive standard of proof and a heavier burden of persuasion on the government.”³⁵ General Dynamics, though, does not say no market data may be used; nor does it say that any data about the state of the economy is unwelcome. All the holding ultimately says is that the market concentration that the government offered was “insufficient” in proving that the party engaged in anticompetitive behavior.³⁶

What General Dynamics does, then, is require a higher level of precision: one needs more than a speculative route that the economy may take based on broad market concentration data. The case rejected the “statistical presentation” – not the use of statistics per se.³⁷ In many respects, the Chicago School reasoning is not all that removed from General Dynamics: with this, the Chicago School just happens to argue on behalf of bringing other facets—specifically fewer facets—to a given case to prove anticompetitive behavior. Seen in this light, General Dynamics’s modification of Von’s represents an incremental move up from the present consumer welfare approach. While a consumer welfare approach carries with it far fewer puzzle pieces, these need not be the only components offered to a court. At its core, General Dynamics merely functions to reign in the ostensible excesses (or avenues for abuse) that Von’s offers. The judiciary’s renewed or revised approach to antitrust cases may be executed in good conscience: Von’s and General Dynamics are just the starting points for approaching a given merger question.

B. Application of a Modified Precedent

Should the FTC lose its adjudicative authority, district courts around the United States may take on a new interpretative approach building on Von’s and its modification in General Dynamics. Though Von’s and the late-1960s approach to antitrust have fallen out of favor, it remains good law in most circuits. The Chicago School’s home Seventh Circuit Court of Appeals explicitly moved away from Von’s in a case called United States v. Rockford Memorial Corp.³⁸ In this case, the court said that “[i]n recent years [after Von’s], however, a more moderate interpretation of section 7 has prevailed. As we noted . . . [this court’s] understanding of section 7 is that it forbids mergers that are likely to ‘hurt consumers, as by making it easier for the firms in the market to collude, expressly or tacitly, and thereby force price above or farther above the competitive level.’”³⁹ Rockford Memorial represents an implicit bar on following Von’s and a clear embrace of the consumer welfare standard. Other circuits, without repudiating Von’s, have placed some limitations on its use. The D.C. Circuit and the Eighth Circuit have also noted that General Dynamics did away with Von’s more liberal interpretation of Section 7.⁴⁰

But, these cases notwithstanding, district courts within other circuits seem free to take on a less modified version of Von’s than the even the D.C. or Eight Circuits. A judge may, for example, consider consumer welfare; he or she may also think of things like the relative gains of a given corporation as compared with its consumers; or a judge could consider the motivations for a given merger since the “larger is the market share of the incumbent, the greater is the competitive significance of the potential entrant,” as the FTC and DOJ argued in their 2010 horizontal merger guidelines. Von’s, especially in light of General Dynamics, provides a floor on which present judges may build upon. The FTC seemed to take this approach in a complaint the agency filed in the District Court for the Northern District of California regarding Meta’s acquisition of Within.⁴¹ In this complaint, the FTC acknowledged many “harmful outcomes” including “less innovation, lower quality, higher prices, less incentive to attract and keep employees, and less consumer choice”; it also argued the merger would “effectively raise barriers to entry and expansion as other companies interested in the space will understand that they need to compete with a deep-pocketed platform operator.”⁴² Yes, price was one piece of the agency’s argument—but other consequences about the future state of the economy featured prominently too.

C. Neo-Von’s in Action

In this vein, a court has ruled on a similar Meta case to some extent in a way that promotes competition following Von’s. Rather than an intellectual framework limited to explaining how consumers benefit through prices, the United States District Court for the District of Columbia issued an opinion that examined how a merger may influence a future company’s own entry into the market.⁴³ This case dealt with Facebook’s acquisition of WhatsApp in the early 2010s and the FTC’s claims regarding future competition.⁴⁴ In a decision rejecting Facebook’s motion for summary judgment, the district court found that the FTC sufficiently alleged that “[a]lthough WhatsApp was not yet active in the personal-social networking market, Facebook feared that once the app reached sufficient scale, it ‘could, by adding additional features and functionalities, enter the personal social networking market at competitive scale and undermine or displace Facebook Blue’s personal social networking monopoly.’”⁴⁵ Now, unlike with the FTC’s past efforts, the court found that the FTC had established at least a plausible basis for bringing an antitrust claim.

The District of D.C.’s order addressed two important factors for a neo-Von’s approach: First, the ability of a company like Facebook to acquire a potential startup competitor; and, second, how the market looks after Facebook acquired a possible competitor of this size. Using the consumer welfare standard – or even Von’s – proves complicated with the first question. If WhatsApp presently had no market share, a court could not invalidate a merger of this size on the basis of “bigness,” or anticompetitive pricing in spite of the fact a merger may still be impermissible. The court’s opinion recognized as much when it reminded the FTC that it could not allege anticompetitive behavior based on the “archetypal form of increased consumer prices.”⁴⁶ In proving a possible case against Facebook, the FTC must examine features beyond the price of the services – how, for instance, this acquisition resulted in fewer companies entering the market – to adequately prove a case against the social media giant.⁴⁷ Addressing the second consideration, the court resisted Facebook’s motion to dismiss because the FTC “adequately alleged that the company’s dominant market share is protected by barriers to entry into that market” and Facebook “not only possesses monopoly power, but that it has willfully maintained that power through anticompetitive conduct.”⁴⁸ This is where the Von’s reasoning is critical: appropriate antitrust enforcement is a matter of a court considering how a given company’s actions may extend to arenas that do not involve price. A company may, as Facebook could have, propped up sufficient barriers to innovation which stifle innovation and result in a worse quality product for consumers.

VI. Conclusion

Criticisms of the Chicago School aside, this is not to say that there were no real gains in the decades following Von’s in terms of innovation and economic development. Nor is this to say that zealous, aggressive enforcement is preferable considering it would “sacrifice major economies of scale and potential efficiencies of integration, harming consumers without offering any proof that the new market structures in reshaped industries would yield consumer or producer benefits.”⁴⁹ Instead, Von’s provides a means of enforcement that is abandoned by both Chicago School theorists and their modern neo-Brandeisian counterparts: Von’s allows several coexisting facets to contribute towards antitrust enforcement. Prices and general “consumer welfare” are doubtlessly critical components when considering potential anticompetitive effects; however, so too are concrete market concentration data, the appearance of barriers to entry, and decreased innovation.

In sum, then, Axon provides something of an opportunity: irrespective of how the Supreme Court rules, district court judges may take on a more active role in promoting competition. Save for those districts that fall under the Seventh Circuit’s jurisdiction, trial courts throughout the country may follow a Von’s-like framework. In a practical sense, General Dynamics is an example of what a court following Von’s may look like: courts must make judgments as to the relevant data that parties may submit. Doing so is found within the language of the Clayton Act: when courts consider what “may” substantially lessen competition, courts must consider the future impact of a given merger. In no small way, a more active judiciary, one with an eye towards future competition, finds safe harbor in the actual text of the statute. Regardless, then, of the final Axon verdict, the FTC may right the path of competition by pursuing cases beyond the walls of its own administrative law judges’ chambers.

James J. Bernstein, J.D. Class of 2024, Georgetown University Law Center.

Suggested Citation: James J. Bernstein, Back to the Future . . . of Competition, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).

1
See, e.g., Heather Elliott, Gorsuch v. the Administrative State, 70 Alabama L. Rev. 703 (2018).
2
15 U.S.C. § 18.
3
Fed. Trade Comm’n v. Facebook, Inc., 560 F. Supp. 3d 1, 18 (D.D.C. 2021).
4
United States v. Von’s Grocery, 384 U.S. 270, 277 (1966).
5
Id.
6
Id.
7
Peter Cartensen, The Philadelphia National Bank Presumption: Merger Analysis in an Unpredictable World, 80 Antitrust L.J. 219, 220 (2015).
8
Von’s, 384 U.S. at 283.
9
Id. at 278 (holding that Section 7 “requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their ‘incipiency.’” (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 326 (1963)).
10
Laura Phillips Sawyer, US Antitrust Law and Policy in Historical Perspective 18–21 (Harvard Bus. Sch. Working Paper, Paper No. 19-110, 2019), https://www.hbs.edu/ris/Publication%20Files/19-110_e21447ad-d98a-451f-8ef0-ba42209018e6.pdf.
11
Eleanor M. Fox, Consumer Beware Chicago, 84 Mich. L. Rev. 1714, 1715 (1986); see also Alden F. Abbott, Policy Brief: U.S. Antitrust Law: A Primer, Mercatus Center 7-8 (Mar. 24, 2021) https://www.mercatus.org/system/files/abbott_-_policy_brief_-_the_u.s._antitrust_laws_a_primer_-_v1.pdf.
12
See Abbott, supra note 11, at 8.
13
Frank H. Easterbrook, Limits of Antitrust, 63 Tex. L. Rev. 1, 39 (1984).
14
Id. at 4.
15
United States v. Gen. Dynamics Corp., 415 U.S. 486 (1974).
16
Id. at 497.
17
Thomas A. Piraino Jr., Reconciling the Harvard and Chicago Schools: A New Antitrust Approach for the 21st Century, 82 Ind. L. J. 345, 351 (2007).
18
Id.
19
Majority Staff, H. Subcomm. on Antitrust, Com., and Admin. L., Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 5-6 (Comm. Print 2022), https://www.govinfo.gov/app/details/CPRT-117HPRT47832/CPRT-117HPRT47832.
20
Id.
21
Id. at 6.
22
See text and notes accompanying note 3, supra.
23
Id.
24
See Abbott, supra note 11, at 4.
25
Axon Enter., Inc. v. FTC, 986 F.3d 1173, 1187 (9th Cir. 2021) (“Axon raises legitimate questions about whether the FTC has stacked the deck in its favor in its administrative proceedings. Axon claims—and FTC does not appear to dispute—that FTC has not lost a single case in the past quarter-century.”).
26
The Administrative State Under Attack: Potentially Far Reaching Implications of Supreme Court’s Decision to Hear Challenge to FTC Administrative Review Process, Proskauer, Minding Your Business Blog (Feb. 7, 2022) https://www.proskauer.com/blog/the-administrative-state-under-attack-potentially-far-reaching-implications-of-supreme-courts-decision-to-hear-challenge-to-ftc-administrative-review-process.
27
Id.
28
Investigation of Competition in Digital Markets, supra note 19, at 8.
29
Maurice E. Stucke & Ariel Ezrachi, The Rise, Fall, and Rebirth of the U.S. Antitrust Movement, Harv. Bus. Rev. (Dec. 15, 2017) https://hbr.org/2017/12/the-rise-fall-and-rebirth-of-the-u-s-antitrust-movement.
30
See generally Barak Y. Orbach, The Antitrust Consumer Welfare Paradox, 7 J. Competition L. & Econ. 133, 133-136(2011) (summarizing the mainstream consensus that the “stated instrumental goal of antitrust laws is ‘consumer welfare’”).
31
See, e.g., 15 U.S.C. § 18.
32
See Von’s, 384 U.S. at 281 (White, J., concurring) (“[T]he Government sufficiently proved that the effect of this merger may be substantially to lessen competition or to tend to create a monopoly.”).
33
Id. at 278.
34
William J. Kolasky & Andrew R. Dick, The Merger Guidelines and The Integration of Efficiencies Into Antitrust Review of Horizontal Mergers, 71 Antitrust L.J. 207, 213-14 (2003) (“[Always ruling for the government] began to change with the Supreme Court’s General Dynamics decision in 1974.”)
35
James F. Ponsoldt, The Expansion of Horizontal Merger Defenses After General Dynamics: A Suggested Reconsideration of Sherman Act Principles, 12 Loy. U. Chi. L. J. 361, 373 (1981).
36
Gen. Dynamics, 415 U.S. at 511
37
Id.; see also Irene R. Diamant, The Failing Company Doctrine Since General Dynamics: More Than Excess Baggage, 47 Fordham L. Rev. 872, 880-81 (1979) (“While the Court recognized the importance of such statistics, it made clear that, as had been stated earlier in Brown Shoe, statistics are by no means conclusive and that every merger must be viewed within the context of the nature and history of its industry in order to determine its effect on competition.”)
38
See United States v. Rockford Mem’l Corp., 898 F.2d 1278 (7th Cir. 1990).
39
Id. at 1282-83.
40
See United States. v. Baker Hughes, Inc. 908 F.2d 981, 990 (D.C. Cir. 1990); Fed. Trade Comm’n v. Sanford Health, 926 F.3d 959, 963 (2019).
41
Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(B) Of the Federal Trade Commission Act, Fed. Trade Comm’n v. Meta Platforms, No. 22-cv-04325-EJD (N.D. Cal. Complaint filed Jul. 27, 2022).
42
Id at 3, 30.
43
Fed. Trade Comm’n v. Facebook, Inc. 581 F.Supp.3d 34(D.D.C. 2022).
44
Id. at 41-42.
45
Id. at 54. (“Those facts sufficiently allege that Facebook acquired Instagram and WhatsApp in order to neutralize actual and likely future competitors.”)
46
Id. at 55.
47
See, e.g., id. at 50 (“The FTC alleges that ‘‘Facebook’s dominant position in the U.S. personal social networking market is durable due to significant entry barriers, including direct network effects and high switching costs” . . . The Court concludes that such allegations . . . are sufficient at this stage.”).
48
Id. at 40.
49
See Abbott, supra note 11, at 10-11.