Philadelphia National Bank, Globalization, and the Public Interest

This Article examines the use of public interest factors in merger analysis. We begin with a review of the use of such factors in jurisdictions around the world and then focus on the U.S. Supreme Court's rejection of public interest factors in the Philadelphia National Bank case and on South Africa's thoughtful consideration of public interest factors in its analysis of Wal-Mart's acquisition of Massmart, a South African retailer. Although we do not advocate a ready embrace of public interest considerations, we do think that the Wal-Mart/Massmart decision provides insight into how jurisdictions that consider public interest factors might usefully do so. Based on the lessons learned from these two cases, we conclude with a discussion of the appropriate norms that jurisdictions should follow when taking account of public interest in merger enforcement, with particular emphasis on clear articulation of public interest goals, transparency of process, and quantification of costs and benefits