The FTC has a losing record against Big Tech --- they purse bad cases with questionable strategies. This time will be no different with big data.

In yet another setback to the Federal Trade Commission’s competition agenda against Big Tech, a district court rejected the agency’s bid to block the Microsoft/Activision Blizzard transaction. The FTC’s appeals to the Ninth Circuit Court of Appeals and the Supreme Court were to no avail. The Microsoft/Activision Blizzard loss follows the agency’s loss in its challenge of the Meta/Within transaction. These losses raise questions about the agency’s judgment in pursuing bad cases and what it might do differently. The two cases share many similarities. The acquirers in both transactions are Big Tech firms. Both merger challenges were decided by district court judges appointed by Democratic presidents, Judge Edward J. Davila (appointed by President Barack Obama) overseeing the Meta/Within case and Judge Jacqueline Scott Corley (appointed by President Joe Biden) overseeing the Microsoft/Activision Blizzard case, both in the Northern District of California. In both cases, the main theories of harm did not imply a loss of current competition between the merging parties. In Meta/Within, the FTC challenged the transaction based on the “actual potential competition” and “perceived potential competition” theories where the main concern is the loss of potential future competition. The FTC challenged the Microsoft/Activision Blizzard transaction based on vertical theories of harm. The Agencies (the FTC and Department of Justice Antitrust Division) rarely litigate potential competition and vertical merger cases and have a poor record in winning such cases in court. What the Microsoft/Activision Blizzard and Meta/Within cases also have in common is that the FTC’s evidence in both cases was shockingly weak.