THE IMPACT OF BUSINESS REALITIES IN RECENT POTENTIAL COMPETITION AND HORIZONTAL MERGER CASES—THE GOVERNMENT CAN LOSE

This new trend may be described simply. It consists of a series of Government losses in Section 7 cases, particularly horizontal and potential competition cases, where the government previously had appeared virtually invincible. The trend in the cases suggests unmistakably that the Government can no longer count on winning most horizontal merger cases and, even more significantly, it will probably lose if it predicates a claim on the probable substantial lessening of potential competition. The trend against the Government in the potential competition cases, in fact, is so pronounced, that today we might well pronounce the potential competition doctrine dead. If that seems too strong, at the very least we can safely say that the recent string of Government losses suggests that the doctrine is of markedly reduced importance.