Saint Louis University Journal of Health Law & Policy
Document Type
Student Comment
Abstract
In response to growing concerns regarding consolidation in the healthcare industry and the limitations of the consumer welfare standard focus, the Biden Administration’s repeal of healthcare-specific guidance and the introduction of the 2023 Merger Guidelines mark an important shift in antitrust enforcement. Departing from the 2010 Horizontal Merger Guidelines, the new framework centers on the “substantial lessening” principle grounded in the text of Section 7 of the Clayton Act. The goal––to empower regulators to scrutinize mergers that may harm the competitive process beyond cases that clearly raise prices for consumers. This Note discusses the legal implications of this shift, particularly for nontraditional mergers such as vertical, cross-market, and serial acquisitions that are increasingly used in healthcare. Additionally, this Note explores how the guidance update aims to close enforcement gaps, bolster pre-merger risk assessment, and seeks to reflect current market dynamics and academic thought. Furthermore, this Note examines recent case studies and enforcement actions to evaluate the principle’s viability and its potential to align antitrust review with the statute’s purpose––protecting competition.
Recommended Citation
Nadia C. Hundley,
Health Care Transactions and the 2023 Merger Guidelines: Shift to Substantial Lessening Principle,
18
St. Louis U. J. Health L. & Pol'y
(2024).
Available at:
https://scholarship.law.slu.edu/jhlp/vol18/iss1/6