Sec. 202. Merger presumptions
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Section 7 of the Clayton Act ( 15 U.S.C. 18 ), as amended by section 106 of this Act, is amended— by striking all that proceeds person engaged in commerce and inserting the following: No ; by striking No person shall acquire, and inserting the following: No person shall acquire ; by striking This section shall not apply and inserting the following: This section shall not apply ; by striking Nor shall anything herein and inserting the following: Nor shall anything herein ; by striking Nothing contained in this section shall be held and inserting the following:
Nothing contained in this section shall be held ; by striking Nothing contained in this section shall apply to transactions and inserting the following: Nothing contained in this section shall apply to transactions ; and by inserting after subsection (b), as so designated by this section, the following: The United States may initiate a proceeding to enjoin a transaction prohibited by this section. In a proceeding initiated by the United States to enjoin a transaction prohibited by this section, it shall be presumed that the effect of a transaction may be substantially to lessen competition, or to tend to create a monopoly, if— the United States shows by a preponderance of the evidence that, as a result of the transaction, the combined firm would be able meaningfully to increase prices or reduce output, innovation, or quality in a market; or the transaction would combine persons that compete, would compete, or would attempt to compete against each other, absent the transaction; and the combined firm would have a post-transaction share of the market that— is greater than 33 percent; or if the acquiring person is owned or controlled by a foreign government, is greater than 5 percent.
A defendant may rebut a presumption under clause
(i)or
(ii)of subparagraph
(A)only if the defendant demonstrates by a preponderance of the evidence that— the combined parties post-transaction would not be able to exercise market power; or the anticompetitive effects of the transaction— are insubstantial; or are clearly outweighed by the procompetitive benefits of the transaction in the relevant market. The presumptions under clauses
(i)and
(ii)of subparagraph
(A)shall not limit any other presumption courts have created or used or may create or use in resolving cases under this section. In a proceeding initiated by the United States to enjoin a transaction prohibited by this section, except to the extent the transaction is necessary to prevent serious harm to the national economy, the effect of a transaction shall be deemed to substantially to lessen competition, or to tend to create a monopoly, if— the transaction would combine persons that compete, would compete, or would attempt to compete against each other absent the transaction; and the combined firm would have a post-transaction share of the market that is greater than 66 percent. .
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Sec. 202
Merger presumptions
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