Grail and its competitors are developing tests which will save perhaps millions of lives. They will detect many different types of cancer very early—if they ever exist. All these tests need Illumina’s instruments. The FTC, reversing an administrative law judge, said Illumina could not buy Grail. If it did, the FTC said, it would not let Grail’s competitors use its instruments. Illumina has appealed, saying, among other things, that since the tests do not exist there is, for antitrust purposes, currently no market. Yet while the tests may or may not exist in the future the Fifth Circuit has to decide this case now.
What happens when the goals of antitrust enforcers clash with regulators focused on issues of national security and public interest? A forthcoming book by Ioannis Kokkoris, Public Interest Considerations in US Merger Control, explores these tensions in the United States regulatory framework.
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