UC Irvine Law Review

The retail industry has endured a variety of changes throughout the last two decades. One major disruption in this industry has been the rise of internet retailers like Amazon that have pushed traditional brick-and-mortar retailers to either adapt in order to compete, or risk a slow and painful retail death. Antitrust law should take into account the realities of the retail industry and with whom large brick-and-mortar retailers are actually competing against. One avenue that antitrust law can use to take this reality into account is in its approach towards reviewing retail mergers. An important part of assessing whether a merger will have an anti-competitive effect on a specific geographic market involves determining which retailers are included in that geographic market to begin with. This Note argues federal courts and the Federal Trade Commission (FTC) should include Amazon as a competitor when assessing the geographic market for major brick-and-mortar retailers like Walmart, Target, Staples, and Best Buy. As of November 2021, federal courts have not had a chance to substantively consider whether Amazon should be included in the geographic market for large brick-and-mortar retail mergers. To the extent that courts have tangentially touched the issue, it appears courts have been hesitant to include internet retailers in the same geographic market as brick-and-mortar retailers. The FTC, on the other hand, has had a mixed response to Amazon and internet retailers. Inevitably, major brick-and-mortar retail mergers will occur, such as the recently attempted Staples/Office Depot merger, which will require consideration by the FTC and, in some cases, federal courts. When these mergers occur, Amazon should be considered a competitor when the merging retailers’ pricing and non-pricing conduct indicates that they consider Amazon a competitor.