Potential Competition: A Force Awakened or a Phantom Menace?

The 2023 Merger Guidelines promulgated by the Department of Justice and the Federal Trade Commission resurrects the Potential Competition Doctrine.  The doctrine, developed and expanded by the Supreme Court, was severely restricted and nearly killed by Justice Powell in U.S. v. Marine Bancorp. The potential competition doctrine is actually two separate doctrines, actual potential competition doctrine and perceived potential competition doctrine. The 1984 Merger Guidelines combined the separate