The US Department of Justice and Federal Trade Commission have recently announced an aggressive approach to enforcing Section 8 of the Clayton Act, which (with some exceptions) absolutely prohibits director or officer interlocks between competing corporations. This article describes Section 8's statutory text and considers the harms to competition Section 8 seeks to prevent; outlines the U.S. agencies expanded approach to enforcement; describes how the statute's boundaries may be tested and some recurring unsettled issues; and contributes a few thoughts regarding the future of Section 8 enforcement. Although a more aggressive approach to Section 8 enforcement can bring benefits in some circumstances, it is important that the agencies respect the limits of the statute and do not overreach.
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Originally published by Competition Policy International Chronicle on March 2023.
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