Defending the Merger Efficiency Defense: A Response to Herbert Hovenkamp

December 9, 2025, Opinion: "In his recent article, “The U.S. Supreme Court and the Merger Efficiency Defense,” Herbert Hovenkamp contends that the “cumbersome” use of a merger-efficiencies defense, which places on defendants—the merging parties—the task of demonstrating pro-competitive benefits, “puts the cart before the horse.” Louis Kaplow’s Rethinking Merger Analysis advances a similar theme. We believe, however, that maintaining an efficiencies defense keeps the horse from escaping the barn before careful analysis determines whether the barn door should be open or closed."