Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals
This article examines a vital problem of private antitrust enforcement – the standing of private merger litigants – where the unresolved tension between public antitrust goals and the private interests of litigants threatens enforcement breakdown. Private merger enforcement is at risk not because courts have determined that such enforcement is undesirable, but because courts have failed to see the problem as an issue of systems design requiring effective integration of public and private enforcement. Instead they have focused on particular elements of antitrust standing – feared abuses by wrongly motivated plaintiffs – neglecting system-wide effects and jeopardizing the health of private enforcement as a whole. In this paper, I attempt to develop a coherent method for reconciling public interest goals and private enforcement incentives that will be useful not only for merger enforcement, but for other areas of antitrust law, and perhaps for public interest litigation generally.