I would expect the FTC to have a low win rate. Let's leave aside how atrophied enforcement of antitrust has been over the last 40 years, and the subsequent implications for case law, regulations and human skill of litigators.
This is a 75 billion dollar event between two giant companies. They can pay for legal advice. That legal advice is well incentivized to predict how the case will go, and signed off on it. I assume MS has to pay a hefty fee if the acquisition is blocked for antitrust reasons, in addition to the time and embarrassment for all involved.
Therefore, the only cases the FTC should expect to see are ones where highly paid lawyers said "we will probably win this case". They might be wrong (and the FTC does seem unable to stop too many cases), but no matter how tough the enforcement gets, I would expect the FTC to usually lose at trial. The standards will just be applied pre-merger announcement (or probably pre-offer).
It might be an exciting couple of years when the FTC regrows its backbone and the lawyers assessing mergers have not caught up yet.
This is a 75 billion dollar event between two giant companies. They can pay for legal advice. That legal advice is well incentivized to predict how the case will go, and signed off on it. I assume MS has to pay a hefty fee if the acquisition is blocked for antitrust reasons, in addition to the time and embarrassment for all involved.
Therefore, the only cases the FTC should expect to see are ones where highly paid lawyers said "we will probably win this case". They might be wrong (and the FTC does seem unable to stop too many cases), but no matter how tough the enforcement gets, I would expect the FTC to usually lose at trial. The standards will just be applied pre-merger announcement (or probably pre-offer).
It might be an exciting couple of years when the FTC regrows its backbone and the lawyers assessing mergers have not caught up yet.