Overenforcement in the Hart-Scott-Rodino Second Request Process

Abstract

The premerger notification provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 authorize the Federal Trade Commission and the U.S. Department of Justice to issue Requests for Additional Information and Documentary Material — so-called Second Requests — to parties to a merger, acquisition, or similar transaction in connection with either agency’s investigation into a possible violation of Section 7 of the Clayton Act. When Congress enacted the statute, it envisioned a Second Request process that differs in fundamental respects from the practice that has emerged over the past twenty years. According to the legislative history, for example, Congress anticipated that Second Request responses would be compiled in one or two weeks and would consist of a few cartons of materials that had already been collected by the parties to the transaction in connection with their own premerger reviews. In reality, Second Requests have frequently proven to be markedly more burdensome. This paper identifies the principal reasons for the deviation. It also identifies some of the consequences.

This chapter is an abridged and updated version of Blumenthal (1991), which was based upon a presentation at the 65th Annual Conference of the Western Economic Association International in July 1990. I gratefully acknowledge criticisms from my discussant at the Conference, James C. Egan, Jr.; valuable criticisms on earlier drafts from Jonathan B. Baker, David A. Bal to, Peter Bronsteen, Malcolm B. Coate, Alan A. Fisher, Andrew N. Kleit, Robert H. Lande, W. Todd Miller, and Malcolm R. Pfunder; conversations with Stephen Calkins, Wayne D. Collins, James M. Giffin, Barry C. Harris, Charles A. James, William E. Kovacic, Philip B. Nelson, and James D. Sonda; and research assistance from Mary J. Houle. I remain responsible for any errors in the final version.