Legal and Economic Perspectives
New Horizons in Competition Law and Economics series
Edited by François Lévêque and Howard Shelanski
Chapter 5: Rethinking Merger Remedies: Toward a Harmonization of Regulatory Oversight with Antitrust Merger Review
Philip J. Weiser* The debate concerning merger review in regulated industries often starts with the claim that regulatory agencies provide little or no added benefit to the review conducted by competition authorities. In the US telecommunications context, Harold Furchtgott-Roth, a former Commissioner on the Federal Communications Commission (FCC), has called for an end to regulatory oversight of mergers between telecommunications providers, developing his critique in a number of his separate statements while he served on the Commission and, most recently, in testimony to the US Antitrust Modernization Commission (Furchtgott-Roth, 2005). In so doing, he amplified the criticism offered by a number of commentators, former FCC officials, and practitioners, all of whom bemoan the FCC’s lack of a clear competition policy standard, penchant for imposing conditions unrelated to the merger itself, and tendency to delay the ultimate approval of the transaction (Barkow and Huber 2000; Tramont 2000; Russell and Wolson 2002). Over the last decade, the FCC has vacillated in its approach to merger review. One constant is that, except for the very rare case, it does not bar two firms from merging on competition policy grounds (FCC 2002). Rather, it generally imposes conditions on the merger. In the worst of cases, the agency, as former Chairman Powell once criticized, “places harm on one side of the scale and then collects and places any hodgepodge of conditions no matter how ill-suited to remedying the identified infirmities on the other side of the scale” (FCC 1999, p. 15 197). In the best...
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