This Note both analyzes the problems that vertical mergers present in antitrust law and explores solutions to combat the difficulties enforcement agencies and merging entities face during injunctive relief proceedings. This Note was written to edify practitioners in both antitrust law and unrelated specialties. Although the goal of antitrust enforcement is the protection of competition, not competitors, vertical mergers pose a unique challenge for antitrust practitioners and enforcement agencies when they attempt to persuade a court of the proposed merger’s procompetitive and anticompetitive effects. This is because vertical mergers do not inherently result in the elimination of competition. To better understand why some vertical mergers are challenged, this Note engages in a comprehensive exploration of vertical mergers themselves; their history within antitrust law; and their potential for producing economic benefits or harms. This understanding lays the foundation for tackling the overarching problem that appeared in the U.S District Court for the District of Columbia’s 2018 opinion of United States v. AT&T, Inc.: a lack of specifics on the types of evidence that will satisfy each party’s burden under the Baker Hughes framework.
To address this problem, this Note investigates the Baker Hughes burden-shifting framework used to analyze vertical mergers to find what is both unclear and what can be improved. From there, this Note draws from three burden-shifting frameworks outside of antitrust law to find commonalities with the Baker Hughes framework: a novel contribution to vertical merger analysis. These common elements are incorporated into this Note’s proposed solutions: detailing the specific evidence that both parties can introduce to satisfy their respective burdens and establishing a definite articulation of the government’s burden of persuasion in vertical merger cases as satisfied by a preponderance of the evidence standard. This Note’s attempt to fill in the Baker Hughes framework’s missing gaps will hopefully propel antitrust law forward into a new era of vertical merger enforcement that results in more equitable and even-handed decisions.