Why a Media Merger That Should Go Through Might Not

Opponents of the proposed AT&T purchase of Time Warner don’t want to just block the $84.5 billion deal: They want to overturn decades of antitrust policy and case law. Until recently, that would have been all but unthinkable. But in today’s superheated and politically charged environment, they may just succeed.

Politicians were piling on recently to criticize the deal, including Donald Trump and Sen Tim Kaine (D-VA), the Democratic nominee for vice president. “Over the last 40 to 50 years, antitrust law has evolved to be almost completely indifferent to vertical mergers,” said Tim Wu, an antitrust and internet expert at Columbia Law School who coined the phrase “net neutrality” and recently wrote “The Attention Merchants” on the advertising business. In vertical mergers, a company buys a supplier; in horizontal mergers, direct competitors combine. But the new generation harks back to the original trustbusters of the early 20th century, who were most concerned about preventing corporations from gaining too much power. “The antitrust system as it stands is focused on prices to consumers, innovation and efficiencies,” Wu said. “That reflects the triumph of the University of Chicago school of economics. But there’s an older tradition, embodied by Supreme Court Justice Louis Brandeis, that says a concentration of too much power in too few hands is bad for democracy and bad for consumers.”