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There is a certain irony in calling for lower market share thresholds when complaining that the DOJ abused its discretion by investigating deals in which the parties had....low shares. https://twitter.com/halsinger/status/1286415694721159168
If the idea is just to block more deals, then fine. I disagree with the approach, but I get it. But this doesn’t deal with agency discretion issues and questions about politically motivated prosecution. If anything, it could make them worse.
First, last I checked, you need to define a market in order to calculate shares. That can be a hotly contested issue. Maybe more contested than effects. Different market borders may put you above or below the share thresholds.
Second, by lowering the thresholds you only *help* to justify agency action against deals that are likely to have no anticompetitive effect. That only increases an agency’s ability to wield its power (for whatever purpose).
There is a reason that Justice Stewart said in 1966 that the only consistency in Clayton Act cases is that the government always wins. It’s because almost anything could be characterized as anticompetitive under the framework at the time. Let’s not return to that.
I agree with those who say we should limit agency discretion. But you do that by articulating a clear standard that is unlikely to catch lawful deals and by inserting an independent entity to review agency decisions. That is why the courts are so important.
You can read more here:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165192
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165192
