by Alexander S. Greenberg*
This Contribution examines the important role that contractual supply agreements can play in addressing input foreclosure risks in vertical mergers. By analyzing the Microsoft/Activision merger and the Illumina/Grail acquisition, this Contribution assesses the efficacy of behavioral remedies such as supply agreements in preserving access to essential market inputs. The discussion highlights the adaptability of supply agreements in dynamic markets and their potential advantages over structural remedies. FTC v. Microsoft Corporation demonstrates how well-crafted supply agreements can facilitate regulatory approval by guaranteeing rivals’ access to crucial inputs. In contrast, the Federal Trade Commission’s rejection of Illumina’s Open Offer in Illumina, Inc. v. FTC underscores the limitations of broad behavioral remedies that fail to adequately prevent secondary harm. This Contribution argues that, when thoughtfully structured, supply agreements can serve as a powerful tool to mitigate vertical foreclosure concerns in rapidly evolving markets.