Abstract

This Note is organized as follows. In Part II, this Note outlines the history of state participation in mergers, emphasizing the states' recent responses to federal retrenchment. In Part III, this Note analyzes the competing rationales for the antitrust, laws and concludes that the federal policy focusing on "economic efficiency" does not fully effectuate the intent of the antitrust laws. It then argues that states can actively enforce the merger laws in order to preserve congressional intent. Because state participation in mergers presents unique problems, this Note also addresses the main argument against state enforcement of antitrust laws.

In Part IV, this Note addresses the preemption issues that arise under the Supremacy Clause of the United States Constitution from state enforcement of merger laws. This Note then concludes that states are justified in-more actively enforcing merger laws, but recognizes the constitutional problems created if the merger involves national corporations.

In Part V, this Note proposes an analytic framework for the state attorneys general to use in determining whether to challenge a proposed merger. Although the National Attorneys General Horizontal Merger Guidelines (NAAG Guidelines)  provide guidance to attorneys general regarding what constitutes a violation of state merger laws, they do not consider the constitutional implications of enforcement. The proposed framework .adopts the NAAG Guidelines as the model for evaluation of mergers, but incorporates a version of commerce clause analysis into the enforcement decision. This framework preempts preemption problems by addressing the potential constitutional problems earlier in the process than the judicial forum.

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