A N T I T R U S T M O D E R N I Z A T I O ... - ncbfaa

R E P O R T A N D R E C O M M E N D A T I O N S 2370. For mergers in regulated industries, the relevant antitrust agency should performthe competition analysis. The relevant regulatory authority should not re-do thecompetition analysis of the antitrust agency.71. The federal antitrust agencies and other regulatory agencies should consult onthe effects of regulation on competition.72. The antitrust enforcement agencies and courts should take account of thecompetitive characteristics of regulated industries, including the effectsof regulation.73. Mergers in regulated industries should be subject to the requirements of theHart-Scott-Rodino Act, if they meet the tests for its applicability, or to anequivalent pre-merger notification and investigation procedure, such as setforth in the banking statutes, so that the relevant antitrust agency can conducta timely and well-informed review of the proposed merger.74. Congress should periodically review all instances in which a regulatory agencyreviews proposed mergers or acquisitions under the agency’s “public interest”standard to determine whether in fact such regulatory review is necessary.● In its reevaluation, Congress should consider whether particular, identifiedinterests exist that an antitrust agency’s review of the proposed transaction’slikely competitive effects under Section 7 of the Clayton Act would notadequately protect. Such “particular, identified interests” would be interestsother than those consumers’ interests—such as lower prices, higher quality,and desired product choices—served by maintaining competition.The State Action Doctrine75. Congress should not codify the state action doctrine. Rather, the courts shouldapply the state action doctrine more precisely and with greater attention toboth Supreme Court precedents and possible consumer harm from immunizedconduct.