Although the Department of Justice (DOJ) and the Federal Trade Commission (FTC) are the principal merger enforcers in this country, state attorneys general (state AGs) can, and often do, play a major role in merger review as well. State AGs have the authority to challenge mergers and acquisitions under federal antitrust laws and most state antitrust statutes, but they typically only do so in partnership with federal antitrust enforcers. This is because state AGs have more limited resources than their federal counterparts and do not have access to the same enforcement tools granted to the DOJ and FTC under the federal premerger review process. Recently, however, states have been active in merger enforcement, with state AGs opposing high-profile transactions both alongside, and independent from, the federal enforcers, including Bayer AG’s proposed $62 billion acquisition of Monsanto. This potential uptick in state AG merger enforcement offers a reminder that states can pose a major obstacle to merger clearance. This article reviews the powers granted to states under federal antitrust statutes and discusses how some state AGs have commenced an effort to assert more influence in merger enforcement.

Legal Standard and Advantages of Joint Federal-State Actions