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Financial Crisis And Merger Review Standards

Law360 (April 28, 2009, 12:00 AM EDT) -- The current financial crisis has ushered in a discussion of possible changes to the implementation of antitrust law enforcement policy applicable to mergers.

Suggestions have included the addition of a "too big to fail" criterion in merger reviews and an "economic crisis" addendum to the antitrust agencies' current use of the failing firm defense. These proposals should be approached very cautiously.

The first proposal, addressing the creation of entities which might later fail, appears to present issues far outside current parameters of Section 7 of the...
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