The merger of two or more independent business enterprises into a single business entity is the antithesis of the underlying policy in our economic system—the promotion of competition. However, regulatory agencies often face the major problem of applying antitrust provisions promoting freedom of competition in an industry where competition is restricted by law. It is commonly understood that if left unregulated private mergers of independent businesses tend to have anti-competitive impacts, i.e., the creation of monopolies. On the other hand, anti-trust laws and the agencies promulgating them function within highly regulated sectors where the government controls who may participate. The problem this article seeks to illustrate is how regulatory agencies like the Civil Aeronautics Board and the Interstate Commerce Commission approach and apply pro-competitive antitrust provisions against anti-competitive mergers in an industry in which competition is restricted.
This article draws its information from the main antitrust legislations, the Sherman Act and the Clayton Act. The article analyzes how courts have interpreted the Civil Aeronautics Board and the Interstate Commerce Commissions' use of these acts and the effects they have had on their respective economic sectors. While many believed that antitrust laws functioned to restrict mergers and promote free and fair competition, the regulatory agencies promulgating these laws use them for much more. Depending on the state of the economy or of a specific economic sector, a regulatory agency may approve mergers that, if given other circumstances, would have been denied. The balance between allowing a merger to promote economic prosperity within the economy or a given economic sector and creating a monopolistic economy is fine. However, these regulatory agencies and their use of antitrust laws is vital to the health of our economy and its respective regulated sectors.
St. Mary's University School of Law
C. Paul Rogers III,
Mergers in Regulated Industries: The Role of the Regulatory Agency.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol7/iss2/1