May 15, 2009 Privileged and Confidential U.S. Merger Enforcement In An Economic Crisis Global Competition Conference Wm. Randolph Smith Crowell & Moring LLP

Privileged and Confidential 2 “That Was Then, This Is Now” »Candidate Obama: As president, I will -“reinvigorate antitrust enforcement,” and -“step up review of merger activity.” »President Obama: -“the state of our economy is a concern that rises above all others,” so -“our single most important priority is bringing about economic recovery.”

Privileged and Confidential 3 When The Past Is Not Prologue »Merger analysis is about predicting the future »Relies on past performance (e.g., market shares) »Most important question today: -Do past shares accurately reflect future competitive significance?

Privileged and Confidential 4 Too Big To Fail? Or Efficient Enough Not To? »Many markets have experienced dramatic decreases in demand »New economic reality will not support existing supply base »Can 2 competitors right-size production more efficiently together than individually?

Privileged and Confidential 5 Implications for New Administration »AAG Christine Varney and FTC Chair Jon Liebowitz have close ties to White House and Capitol Hill »First step is to support economic recovery »Enforcement legacy comes later