Build, Buy, or Both?: On the Antitrust Laws' Supposed Preference for "Internal Growth" over Acquisitions

This Article challenges recent claims by antitrust enforcers that the U.S. antitrust laws embody a preference for “internal” or “organic” growth over external expansion through acquisition. It begins by examining the modern use of this claim in speeches, enforcement actions, and the 2023 Merger Guidelines issued by the Federal Trade Commission and Department of Justice. It then considers the legislative history of the 1950 Celler-Kefauver and 1976 Hart-Scott-Rodino Acts, which are frequently cited as showing congressional support for internal growth. Careful reading of these Acts, however, shows that Congress’s central goal was to close a loophole regarding asset acquisitions, and evinced only passing (and disputed) concern about “organic” expansion.

Further, the Federal Trade Commission’s own reports at the time, which purportedly justified a hostility toward “buying” rather than “building,” were shown to be flawed and later quietly disavowed by their authors. Turning to modern economics, the Article highlights the ways in which acquisitions can promote competition through efficiencies, innovation, and dynamic resource reallocation—sometimes spurring more internal investment rather than crowding it out. It concludes that current hostility toward mergers is at odds with both the legislative record and mainstream economic understanding, and that there is no statutory or scholarly basis for an antitrust preference for firms to grow by “building” instead of “buying.”