The Supreme Court of the United States has held that the failing company doctrine cannot successfully be invoked as a defense to an anti-merger action unless defendant establishes both that the acquiring company is the only available purchaser and that there is dim or non-existent hope for reorganization of the failing company through bankruptcy procedures.
Citizen Publishing Company v. United States, 89 S. Ct. 927 (1969).
James S. Curtin,
Antitrust - Merger - Divestiture Action,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol7/iss4/6