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Handed down more than 50 years ago, the Supreme Court's opinion in Philadelphia National Bank (PNB)' continues to play a prominent role in contemporary merger decisions.2 To celebrate the 50th anniversary of the opinion and to discuss its relevance today, New York University School of Law held a conference in 2013.3 Participants in that conference contributed the articles that follow to this Symposium, for which I, along with Rajesh James, served as Symposium editor.
The interview with Judge Richard Posner in this issue resolves decades of speculation about the authorship of PNB and establishes that Posner, as a judicial clerk, wrote the majority opinion for Justice Brennan.4 In PNB, Posner stressed two themes that continue to interest the contributors to the Symposium: the application of Section 7 of the Clayton Act5 to banks, and the structural presumption that a merger is illegal if the transaction will "produce[ ] a firm controlling an undue percentage share of the relevant market, and result[ ] in a significant increase in the concentration of firms in that market."6 While most of the PNB opinion concerned the applicability of Section 7 to bank mergers,7 it is the opinion's articulation of the structural presumption that has had the broader impact and on which the majority of the Symposium articles focus their discussion.
Posner's decision to base a structural presumption of illegality on increased concentration levels had its origins in an article by Derek Bok, then an assistant professor at Harvard Law School.8 Bok advocated developing simple presumptions to test mergers because "they will be easier to understand, less costly to administer, and no less accurate than more complicated alternatives."9 But he also recognized that such rules "must evolve to keep pace with developments in our knowledge concerning the nature and effects of mergers."10 Consistent with Bok's advice, the antitrust agencies' merger rules have evolved with every revision of the Horizontal Merger Guidelines, but is it now time for the PNB presumption to be left "in the dust heap of history"?" That is the main question addressed by the majority of our symposium authors.
I. HOW DOES THE PNB PRESUMPTION WORK IN PRACTICE?
In the course of trying many of the recent cases discussed in these articles, I have seen the...