Pursuant to an implicit, if not explicit, market-allocation agreement between the Federal Trade Commission and the Antitrust Division, the Division has primary responsibility for investigating and, where warranted, challenging alleged anticompetitive conduct by health plans. Some commentators heavily criticized the Division during the Bush administration for its seeming lack of effort in policing the anticompetitive activities of health plans, although the Division did challenge several health-plan mergers and investigated others. Prior to his election as president, then-Candidate Obama was particularly critical of the Antitrust Division’s performance.

There seems to have been an uptick in health-plan antitrust enforcement under President Obama. For example, in March 2010, the Division issued a press release explaining that Blue Cross Blue Shield of Michigan and Physicians Health Plan of Mid-Michigan abandoned, in response to an Antitrust Division investigation, a health-plan merger that would have combined Blue Cross’s 70 percent market share and Physician Health Plan’s 20 percent share in the Lansing, Michigan area.

Perhaps more interesting is the emphasis the Division has recently placed on investigating and challenging exclusionary agreements between health plans and providers adversely affecting competition....