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13 Geo. Mason L. Rev. 1217 (2004-2006)
Just the Facts: The Role of Customer and Economic Evidence in M&A Analysis

handle is hein.journals/gmlr13 and id is 1231 raw text is: 2006]

Ilene Knable Gotts*
Daniel E. Hemli
Facts are stubborn things; and whatever may be our wishes, our incli-
nations, or the dictates of ourpassions, they cannot alter the state offacts
and evidence.'
The U.S. competition agencies-the U.S. Federal Trade Commission
(FTC) and U.S. Department of Justice (DOJ)-and U.S. courts (and
their counterparts in other jurisdictions with mature enforcement regimes)
have become increasingly sophisticated in their analysis of potential trans-
actions, having evolved from the pure structure-conduct-performance para-
digm of the 1950s-1970s, which the U.S. Supreme Court's decision in
United States v. Philadelphia National Bank epitomized.2 Antitrust enforc-
ers today recognize the importance of fact-based analyses that properly
account for institutions and all the relevant theories, not just market struc-
ture and market power theories.3 This has led to more nuanced analyses
* Ms. Gotts is a partner, and Mr. Hemli is an associate, in the New York City law firm of Wa-
chtell, Lipton, Rosen & Katz. The views of this article are the authors' and are not to be attributed to
their firm or the firm's clients. The authors wish to thank Don Baker, Jonathan Baker, Mary Coleman,
Andrew Dick, Luke Froeb, Ann Malester, Douglas Melamed, Steven Newborn, Janusz Ordover, Steve
Salop and Gregory Werden for their comments. Any errors are the authors' alone and are not attribut-
able to any commentator.
I Timothy J. Muris, Former Chairman of the Federal Trade Commission, Address at the Ameri-
can Bar Association Antitrust Section Annual Meeting: Antitrust Enforcement at the Federal Trade
Commission: In a Word--Continuity (Aug. 7, 2001), http://www.flc.gov/speeches/muris/ murisaba.htm
(quoting John Adams).
2 See generally United States v. Philadelphia Nat'l Bank, 374 U.S. 321 (1963) (establishing a
presumption of anticompetitive harm from a merger resulting in a significant increase in concentration
and the merged firm having a substantial market share).
3 Timothy J. Muris, Former Chairman of the Federal Trade Commission, Address at the George
Mason Law Review's Winter Antitrust Symposium, Improving the Economic Foundations of Competi-


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