A Counterfactual Analysis of Amazon’s Acquisitions Under the 2023 Merger Guidelines

The fact that Amazon was allowed to acquire hundreds of companies as it rose to become the fourth most valuable U.S. company in terms of market capitalization and a leader in three lines of business has been viewed by some as damning evidence of underenforcement by the United States antitrust authorities. In this article we ask the obvious question: If the 2023 Guidelines had been in place instead of prior guidelines, what effects would they have had on Amazon’s development? To provide an answer, we identify relevant changes in the guidelines and then select for review a subset of Amazon’s 280 acquisitions over the period 1998 to 2022. In our counterfactual, we analyze five horizontal acquisitions, four vertical acquisitions, and two sets of serial acquisitions. We find that the 2023 Guidelines would have broadened the bases for potential challenges and thereby would have increased the likelihood that Amazon would have faced greater resistance from antitrust authorities. The lack of safe harbors, the plasticity of individual Guidelines, and the optionality to challenge mergers under alternative theories would have exposed most of Amazon’s acquisitions to challenge. The lack of meaningful guidance about which individual transactions would have been challenged suggests that going forward enforcer discretion will play a yet larger role. Regarding Amazon’s serial acquisitions of nearly one hundred technology firms, we find that the 2023 Guidelines would have provided multiple rationales for intervention. Therein lies a weakness in the Guidelines and in antitrust policy: the lack of a framework for assessing both the anticompetitive and procompetitive effects of such acquisitions in high-tech industries.