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INTRODUCTION
Federal antitrust changed the way it approved merger control by moving from ex post litigation to a quasi-regulatory ex ante regime in 1976 with the passage of the Hart-ScottRodino Act (HSR).1 HSR established a premerger notification process that considers the size of transactions and creates size of person thresholds.2 HSR, therefore, enables regulators to learn about competitive effects of mergers before they happen. When regulators become aware of mergers after the fact, intervention may often be too late. By addressing competitive concerns before a merger is consummated, government antitrust practice changed to focus more on mergers than other forms of conduct,3 and became more regulatory because of this ex ante approach to proposed transactions.4
Whereas a number of prior works criticize this quasi-regulatory approach on transparency and accountability grounds,5 this Article suggests that since the passage of HSR, the antitrust merger control system historically has worked very well. This approach has worked particularly regarding the creation of greater legal certainty for merging parties and the antitrust agencies. Relatively clear guidelines have led to a set of outputs of case law, negotiated settlements, and transactions that have been abandoned because of legitimate antitrust agency scrutiny. This Article contributes to the framing of antitrust merger control by suggesting that, in key aspects, antitrust merger control under HSR may be viewed as an early attempt at a "regulatory sandbox."6 The regulatory sandbox is a mechanism to reduce regulatory uncertainty where innovation may matter and where discussions regarding innovations between government authorities and firms as can be worked out together. The regulatory sandbox is increasingly receiving attention in financial regulation, among other fields.7 Much like in financial regulation, the antitrust regulatory sandbox overall has proven successful8 though, at times, antitrust merger control may still require some tweaks to make it more effective.9 Yet, business certainty under the antitrust regulatory sandbox may be threatened by a current shift in antitrust that creates less certainty through a lack of transparency and shifting goals and makes predictability of outcomes more difficult to discern. This Article identifies some of the current issues as well as offers some solutions.10
I. IMPORTANCE OF MERGER CONTROL
The debate over ex ante and ex post review is an old one within the legal literature.11 The same...