One of the more frequent criticisms of state antitrust enforcement is that it can be too political. No doubt that antitrust enforcement decisions can be quite political, whatever level of political unit is doing the investigating. Whether apolitical antitrust enforcement at the level of any political unit is a realistic goal is a question I cannot answer. Political concerns will be raised, after all, even if raised in an ill-advised manner by parties or opponents to a proposed merger. I think the better question is what place larger political decisions should take in antitrust enforcement decision making.
The statements and representations from Aetna Insurance's upper level management cited in Tuesday's Aetna-Humana Memorandum Opinion enjoining the merger illustrate Aetna's desire for a larger conversation about the trade offs between possible merger challenge and the loss of Aetna exchange participation. These documents give lie to the assertion that the review process is absolutely apolitical in all eyes and sharpen the question about how pointedly political goals ought be invoked when discussing merger enforcement.
As you may have read this summer, when a July 5, 2017 letter from Aetna CEO's Mark Bertolini discussing Aetna's desire for DOJ to back off in its merger investigation if the administration wanted Aetna's continued participation in certain state exchange markets came to light, eyebrows were raised by such a blunt quid pro quo demand.
It is hard to know, however, whether the apparent shock is over whether such demands were made or whether they were made so explicitly. For some time, Aetna appears to have self-identified as an, albeit somewhat cautious, booster of the ACA exchanges. One of the two largest health insurer trade associations (one of which did not lose Aetna's membership until this month) does not appear to dispute the vision of its collective role as a force in the shaping of the ACA .
Perhaps the real takeaway is that the government ought keep political concerns at bay, when and if raised by the parties or anyone else. Of course, memorialized statements seeking the quid pro quo of merger allowance in exchange for ACA exchange support can and will be used against you in court.
x-posted in Prawfsblawg