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Karen Hoffman Lent and Kenneth Schwartz Karen Hoffman Lent and Kenneth Schwartz

On April 12, 2019, the Federal Trade Commission (FTC) held an information-gathering hearing on the efficacy and potential of its merger retrospective program to determine if and how it should conduct more retrospective studies of consummated mergers. Retrospective merger studies by the FTC, Department of Justice, and academics have observed adverse merger effects within the airline, hospital, and consumer goods industries, and suggest that more retrospective studies could provide insight into improving the prospective merger review process. As these past studies show, however, merger retrospectives are subject to a slew of issues regarding feasibility, methodology, and costs, which—taken separately or collectively—could lead to misleading or conflicting results. As such, the FTC should proceed cautiously when designing its studies and relying on study results when pursuing future enforcement actions or reviewing prospective mergers.

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