New merger guidelines: Are the agencies on a collision course with case law?

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This comment discusses (i) the main differences between the Neo-Brandeisian school of antitrust and the consumer-welfare standard, including its Post-Chicago iteration, and (ii) the prospect that courts will defer to the agencies on new merger standards that are likely both to harken back to a more bright-line structural view of antitrust policy and enforcement; and push forward: with today’s progressive concern over access to markets, wage disparities and the other perceived distributional inequities. It concludes that, under our antitrust common law tradition, the battle for control of antitrust standards in the courts may have already been lost and that any true leaps in a progressive direction may have to fall to Congress—a whole different (and itself nascent) battleground.