Ban All Big Mergers. Period.

The antitrust laws successfully blocked only three of the seventy-eight largest finalized mergers and acquisitions (defined as the acquired firm being valued at more than $10 billion) that occurred between 2015 and 2019. The antitrust laws also would permit the first trillion-dollar corporation, Apple, to merge with the previously third largest corporation, Exxon/Mobil. In fact, today every U.S. corporation could merge until just ten were left—so long as each owned only 10% of every relevant market. Even though the Congresses that enacted the anti-merger laws did so in part to limit the political power of corporations, today the federal antitrust agencies and courts interpret these laws only in terms of price and other economic effects within discrete markets. In recent years, however, politicians on the right and the left have shown a renewed interest in using antitrust to control corporate size, structure, and practices. There is a desire both to prevent large mergers and to break up existing companies, such as Facebook and Google, that achieved their dominant positions in part due to acquisitions. This Article proposes model legislation that would prevent every merger that exceeds clearly specified asset thresholds. We propose a law that would block every merger in which both firms have assets exceeding $10 billion, unless they spin-off assets so that their increase in size falls below this figure. This threshold would block at most fifteen to twenty-five of the largest mergers each year. This Article undertakes a legal, economic, and political analysis of our proposed legislation, and shows that it would: (1) Produce no significant losses in corporate efficiency; (2) Be clearer and more predictable than the existing anti-merger laws and thus would enhance the rule of law; and (3) Help prevent significant increases in corporate political power and other forms of non-economic power caused by the largest mergers.