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65 Antitrust L.J. 865 (1996-1997)
The Effect of Twenty Years of Hart-Scott-Rodino on Merger Practice: A Case Study in the Law of Unintended Consequences Applied to Antitrust Legislation

handle is hein.journals/antil65 and id is 873 raw text is: THE EFFECT OF TWENTY YEARS OF HART-SCOTT-RODINO ON MERGER PRACTICE: A CASE STUDY IN THE LAW OF UNINTENDED CONSEQUENCES APPLIED TO ANTITRUST LEGISLATION JOE SIMS DEBORAH P. HERMAN* The Hart-Scott-Rodino Antitrust Improvements Act of 19761 (HSR Act) is now twenty years old. This means that a generation of antitrust lawyers and business people have no memory of merger law asjurispru- dence-a body of case law created by the interaction of advocates before neutral arbiters-as opposed to regulation. It also means that it is timely to see what Messrs. Hart, Scott, and Rodino (and the rest of their legisla- tive colleagues) actually produced. We think they would be quite sur- prised that this modest legislation has had such a dramatic impact. In fact, the premerger notification provisions of the HSR Acte have been, in our opinion, the most important factor in the replacement of merger control through litigation with a comprehensive scheme of merger regulation. This significant development was clearly not the intended consequence of the statute; those of us who were present at the creation3 know that the congressional objective in 1976 was much * Members of the District of Columbia and Arizona, and Ohio and Illinois bars, respec- tively. The authors gratefully acknowledge the research assistance of Melinda Klug Gillis, Janel A. Mulvihill, and David 0. Zimmer. Pub. L. No. 94-435, 90 Stat. 1383 (1976) (codified in various sections of 15, 18, and 28 U.S.C.). 2 Because this is now common usage, we will use the term HSR to mean only the premerger notification provisions of the HSR Act. The rest of the HSR Act (increased investigatory powers for the DOJ and parens patriae litigation authority for state attorneys general) is not really relevant to this article. 3 From 1974-1978, Joe Sims was Deputy Assistant Attorney General in the Antitrust Division and was deeply involved with the negotiations and deliberations on HSR, both on the Hill and within the Ford Administration. During that time he advocated the Administration's position on the issues that ultimately became HSR, including its support for a premerger notification scheme that would ensure that prior notification of, and a reasonable amount of information about, large transactions was made available to the

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