EXHIBIT (5) & (23)

 

LOGO  

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE                

NEW YORK, NY 10019

(212) 839 5300

(212) 839 5599 FAX

  

BEIJING

BRUSSELS

CHICAGO

DALLAS

FRANKFURT        

GENEVA

HONG KONG

LONDON

  

LOS ANGELES

NEW YORK

SAN FRANCISCO

SHANGHAI

SINGAPORE

SYDNEY

TOKYO

WASHINGTON, D.C.

 
     FOUNDED 1866

September 4, 2007

Merrill Lynch & Co., Inc.

4 World Financial Center

New York, New York 10080

Ladies and Gentlemen:

As your counsel, we have examined a copy of the Restated Certificate of Incorporation, as amended, of Merrill Lynch & Co., Inc. (the “Company”), certified by the Secretary of State of the State of Delaware. We are familiar with the corporate proceedings had in connection with the proposed issuance and sale by the Company to Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”), pursuant to a Distribution Agreement dated March 31, 2006 (the “Distribution Agreement”) between the Company and MLPF&S, of the Company’s 12% Callable STock Return Income DEbt SecuritiesSM due September 4, 2009, payable on the maturity date with Apple Inc. common stock. (the “Callable STRIDES”) in an amount equal to $100,000,000 aggregate principal amount of the Callable STRIDES. We have also examined a copy of the Indenture between the Company and The Bank of New York as successor Trustee, dated as of April 1, 1983, as amended (the “Indenture”), and the Company’s Registration


Statement on Form S-3 (File No. 333-132911) relating to the Callable STRIDES (the “Registration Statement”).

Based upon the foregoing and upon such further investigation as we deemed relevant in the premises, we are of the opinion that:

1. The Company has been duly incorporated under the laws of the State of Delaware.

2. The Callable STRIDES have been duly and validly authorized by the Company and, when the Callable STRIDES have been duly executed and authenticated in accordance with the terms of the Indenture and delivered against payment therefor as set forth in the Distribution Agreement, the Callable STRIDES will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, moratorium, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and except as enforcement thereof is subject to general principles at equity (regardless of whether enforcement is considered in a proceeding in equity or at law).

We consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to the Current Report of the Company on Form 8-K dated September 4, 2007.

Very truly yours,

/S/    SIDLEY AUSTIN LLP