Antitrust lawyers say Obama may be optimistic

By Diane Bartz

WASHINGTON (Reuters) - Democratic presidential candidate Barack Obama has promised more vigorous enforcement of antitrust law if elected, but antitrust experts said on Monday that the courts could trip him up.

Obama told reporters in Oregon on Sunday that he expected rapid globalization to lead to changes in antitrust law but added a criticism often heard in antitrust circles: that the Bush administration has been lax, particularly in enforcing merger law.

"If you talk to members of the antitrust division of the Justice Department, the career folks who came in before George Bush took office, there's a sense that there's not a real interest in antitrust prosecutions," the Illinois senator said.

But Phillip Zane of the law firm Baker Donelson pointed out that even when the Justice Department and Federal Trade Commission challenged a merger during the Bush administration, they often lost the resulting court fight.

"Most of the judges appointed by the Republican administrations, particularly beginning with Reagan ... are more skeptical of antitrust enforcement," Zane said.

Howard University law professor Andrew Gavil agreed. "If you read the decisions, you really scratch your head and wonder what would have satisfied the judge."

For example, the FTC failed to get a preliminary injunction to stop the merger of Wild Oats and Whole Foods even though Whole Foods' chief executive said in an e-mail that the deal would "avoid nasty price wars" in several cities.

Steve Axinn, of Axinn, Veltrop and Harkrider LLP, said firms were wrapping up deals in the belief that any of the candidates -- Republican Sen. John McCain, Democratic Sen. Hillary Clinton or Obama -- would oversee tougher merger reviews than the Bush team has.