One of the most controversial topics often discussed between competition lawyers, economists and authorities worldwide concerns arguments related to the failing firm defense, in connection to merger control reviews. The discussion is often identified, but decisions clearing transactions based on the failing firm defense are extremely rare. In times of crises, the importance of this discussion is high, and requires deep reflections. Afterall, these are exceptional times. Shall the authorities treat exceptional times as ordinary ones? If not, how to make sure that the market may benefit from the theory without false negatives, or upon a positive net effect?
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