Merger Process Reform: A Sisyphean Journey

The Merger Regulatory Process as we know it has existed for thirty years. There have been marginal shifts (up and down) in enforcement intensity with changes in administrations and personnel, but there has been one constant: complaints about the burden of the Second Request process. Some of this is inevitable — prosecutors and potential defendants will rarely have identical perspectives. But there has been enough consensus on the flaws in the process that there have been a series of agency efforts to improve it. The problem has not been solved, and we believe a real solution will require a completely different approach to the problem. This article proposes such a new approach.