Antitrust Review of a Merger

Illumina, Inc. v. FTC provides a comprehensive review of every aspect of an FTC antitrust decision about a merger:

To sum up, Illumina’s constitutional challenges to the FTC’s authority are foreclosed by binding Supreme Court precedent, and substantial evidence supported the Commission’s conclusions that (1) the relevant market is the market for the research, development, and commercialization of MCED tests in the United States; (2) Complaint Counsel carried its initial burden of showing that the Illumina-Grail merger is likely to substantially lessen competition in that market under either the ability-and-incentive test or looking to the Brown Shoe factors; and (3) Illumina had not identified cognizable efficiencies to rebut the anticompetitive effects of the merger. However, in considering the Open Offer, the Commission used a standard that was incompatible with the plain language of the Clayton Act. 

No. 23-60167 (Dec. 15, 2023). The “Open Offer” issue involved a dispute about precisely where an agreement, entered to stave off competition-based challenges to this merger, should be considered in the context of the relevant burdens of proof.