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Merger cops Timothy Muris and R. Hewitt Pate currently face an unusual situation for top federal regulators: No one’s paying much attention to them. Normally, corporate lawyers and business executives hang on every word coming from the Federal Trade Commission, chaired by Muris, or the U.S. Department of Justice’s antitrust division, run by Pate. These days, however, both men seem to have trouble getting anyone to listen to their pronouncements on mergers. The latest example of dealmakers’ apparent ambivalence came at The Conference Board’s annual antitrust forum, held in March in New York. Just last year the session, one of the most important gatherings of the antitrust bar, focused on merger policy. This year, when Muris and Pate appeared on stage to answer questions about antitrust enforcement, they weren’t asked a single question about the agencies’ merger policies. Instead, the panel hosting the two regulators discussed a variety of other topics, including the “essential facilities” doctrine, criminal cartels, private antitrust cases such as the recent Conwood Company, L.P., tobacco judgment, and the Microsoft Corporation antitrust case. Afterward, several lawyers said they were surprised that the panel didn’t talk about merger issues. These observers attributed the omission in part to the current dearth of deals. Even some regulators share this view. “We are confronted with a different world,” says FTC competition bureau director Joe Simons. “The level of merger activity is much lower now, so we have a greater percentage of our resources devoted to nonmergers.” But while overall M&A volume may be down, plenty of deals are still being submitted for government review, giving regulators numerous opportunities to state their enforcement philosophy. Last year the Justice Department and the FTC were notified of 182 transactions valued at more than $500 million. Agency officials also say the percentage of deals under challenge has remained constant from the Clinton years to the Bush regime. A relative indifference to merger policy was also apparent at the spring meeting of the American Bar Association’s antitrust section, held in April in D.C. The gathering is always the biggest antitrust show of the year. The showcase program of the section’s chair was devoted to horizontal agreements, a type of anticompetitive conduct unrelated to mergers. And a two-day hearing on remedies was devoted primarily to nonmerger remedies, though it did include some panels on merger issues. Even the Senate Judiciary antitrust subcommittee appears largely uninterested in merger policy. Of the panel’s eight official “priorities,” only its review of telecommunications and media consolidation dealt directly with mergers. The current lack of attention reflects the normal ebb and flow of deal work, says one antitrust lawyer. When mergers heat up again, this lawyer says, everyone will once again hang on every pronouncement from the regulators. Until then, Muris and Pate should enjoy their downtime.

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