As the Justice Department’s challenge to the AT&T/Time Warner merger heads for trial set to begin March 19, 2018, both sides are continuing their legal maneuvering. One of the claims made by AT&T is that the antitrust challenge was motivated by improper political considerations. President Trump has criticized the merger, and AT&T filed a motion seeking executive branch documents that might show influence by the White House on DOJ decisions regarding the antitrust challenge.
This week the motion by AT&T seeking records of communications between the Justice Department and the White House regarding the merger was denied by U.S. District Judge Richard Leon. AT&T had pointed out that most vertical mergers have been routinely approved in their entirety or subject to behavioral conditions that allow the mergers to go forward, so treating the AT&T/Time Warner vertical merger differently may indicate the challenge was based on political considerations. However, Judge Leon ruled that the companies hadn't made a sufficient showing that they were singled out for different treatment than the DOJ gave previous mergers.
For a substantive analysis of the merger and the context in which it should be reviewed, see my recent Perspectives from FSF Scholars entitled “The Proper Context for Assessing the AT&T/Time Warner Merger.”