The Efficiencies Defense in the 2010 Horizontal Merger Guidelines

We analyze the efficiencies defense that is contained in the 2010 Merger Guidelines, which provides the most current statement of the Agencies?? enforcement philosophy and procedure. Most of our attention centers on efficiencies in production, but we also address merger-specific efficiencies that may lead to improved product quality, enhanced services, or even to the introduction of entirely new products. We begin with the analytically clean case of merger-specific efficiencies that are accompanied by monopoly power. From the perspective of either consumer welfare or social welfare, this presents the welfare analysis that should guide merger policy. We, then, examine the errors that may arise due to the restricted role that efficiencies play in Section 7 enforcement. Finally, we close with some policy recommendations.     

Judicial Response to the 2010 Horizontal Merger Guidelines

Review of Industrial Organization - We study how the courts have responded to the 2010 Horizontal Merger Guidelines issued by the U.S. Department of Justice and the Federal Trade Commission....     

Coordinated Effects in the 2010 Horizontal Merger Guidelines

Recent research has highlighted the quantitative contribution to merger analysis from extending unilateral effects models to understand the payoffs to future potential coordinated effects. Some of the emphasis of this research appears to have made its way into the 2010 Horizontal Merger Guidelines. In this paper, we demonstrate the quantification of coordinated effects in an oligopoly and procurement model, and we show that screens that are based on upward pricing pressure are not adequate in mergers where coordinated effects are a potential concern.     

The Horizontal Merger Guidelines of 1992

The 1992 Horizontal Merger Guidelines of the Department of Justice and the Federal Trade Commission outline an enforcement policy which makes a long overdue break with its predecessors in awarding no decisive or predominant role to market concentration as a criterion of anticompetitive effect. However, the new policy does not provide an adequate substitute criterion: the tests that it prescribes for screening merger proposals are so specified that a potentially large proportion of anticompetitive mergers can escape challenge without showing any promise of improving efficiency. The time is ripe for a comprehensive inquiry aimed at formulating a more satisfactory policy.     

Effects of the 2010 Horizontal Merger Guidelines on Merger Review: Based on Ten Years of Practical Experience

Review of Industrial Organization - We assess how the 2010 Merger Guidelines have been applied by agencies and courts. We conclude that:     

Harm to Competition Under the 2010 Horizontal Merger Guidelines

In August, 2010, the Antitrust Division and the Federal Trade Commission issued new Guidelines for assessing horizontal mergers under the antitrust laws. These Guidelines were long awaited not merely because of the lengthy interval between them and previous Guidelines but also because enforcement policy had drifted far from the standards articulated in the previous Guidelines. The 2010 Guidelines are distinctive manly for two things. One is briefer and less detailed treatment of market delineation. The other is an expanded set of theories of harm that justify preventing mergers or reversing mergers that have already occurred. The 2010 Guidelines reflect a growing belief that in markets where product differentiation is minimal competition tends to be robust and the structural presumptions stated in previous Guidelines were too harsh. By contrast, where product differentiation is substantial the Guidelines?? approach tended to define markets too broadly, overlooking significantly anticompetitive possibilities. Under the 2010 Guidelines unilateral effects analysis relevant markets can be very small, often limited to three or four firms, and excluding some obvious substitutes. Markets in merger analysis are not defined for their own sake, however, but rather to ascertain whether a particular alteration in market structure covered by the merger provisions will be likely to facilitate a price increase. The 2010 Guidelines address four substantive merger concerns: exclusion, restraints on innovation, unilateral effects, and coordinated effects. The Guidelines have a separate section on mergers limiting ??innovation and product variety,?? treated mainly in the category of unilateral effects. The 2010 Guidelines are more flexible than previous Guidelines and also more catholic about the types of harms that mergers might cause and the techniques that can be used to assess them. Older Guidelines were excessively wed to methodologies that were at the forefront of applied merger analysis when they were drafted, but that tended to make the Guidelines obsolete as new methodologies became available. Not only do methodologies change, they are also specific to the situation. Further, they tend to be well developed in the literature and accessible to experts consulted by those defending a merger as well as to the government economists who employ them. To be sure, there is a tradeoff between flexibility and guidance. Often we can have more of one only by giving up some of the other, and that tradeoff is clearly present in the 2010 Guidelines.     

The 1992 Horizontal Merger Guidelines: A brief critique

The 1992 Horizontal Merger Guidelines of the United States Department of Justice and the Federal Trade Commission represent an improvement over previous horizontal merger guidelines in certain respects especially in the treatment of entry. However, the 1992 Guidelines continue to suffer from problems with market definition methodology. Also, the softening of HHI presumptions and burdens and the incorporation of an increased competitive effects section seem to reduce the effectiveness of the Guidelines.The views expressed in this article are solely those of the authors and not of any state or federal agency.     

Brown Shoe Versus the Horizontal Merger Guidelines

The new Horizontal Merger Guidelines, if treated by courts as a source of law, would reduce the discretion that is traditionally exercised by courts in defining relevant markets and market power in merger cases. This is an undesirable shift in the balance of power because courts have used the market power inquiry stage of merger analysis as a general checkpoint or weigh station for evaluating factors relevant to the welfare effects of a merger.     

The 2010 Revised Merger Guidelines and Modern Industrial Economics

The new Horizontal Merger Guidelines provide greater transparency into how the Department of Justice and the Federal Trade Commission staffs review horizontal mergers than did the guidelines they replaced. While they reflect some advances in economic techniques for predicting the competitive consequences of mergers (most notabley the Upward Pricing Pressure test), greater attention to costs and efficiencies could further improve merger review.     

Department of justice and federal trade commission: Horizontal Merger Guidelines

Department of justice and federal trade commission: Horizontal Merger Guidelines     

The Sound of One Hand Clapping: The 2010 Merger Guidelines and the Challenge of Judicial Adoption

There is ample justification for the consensus view that the Horizontal Merger Guidelines have proven one of antitrust law??s great successes in the grounding of antitrust doctrine within economic learning. The foundation of the Guidelines?? success has been its widespread adoption by federal courts, which have embraced its rigorous underlying economic logic and analytical approach to merger analysis under the Clayton Act. While some have suggested that the Guidelines?? most recent iteration might jeopardize this record of judicial adoption by downplaying the role of market definition and updating its unilateral effects analysis, we believe that these updates are generally beneficial and include long-overdue shifts away from antiquated structural presumptions in favor of analyzing competitive effects directly where possible. However, this article explores a different reason to be concerned that the 2010 Guidelines may not enjoy widespread judicial adoption: the 2010 Guidelines asymmetrically update economic insights underlying merger analysis. While the 2010 Guidelines?? updated economic thinking on market definition and unilateral effects will likely render the prima facie burden facing plaintiffs easier to satisfy in merger analysis moving forward, and thus have significant practical impact, the Guidelines do not correspondingly update efficiencies analysis, leaving it largely as it first appeared 13 years earlier. We discuss two well-qualified candidates for ??economic updates?? of efficiencies analysis under the Guidelines: (1) out-of-market efficiencies and (2) fixed-cost savings. We conclude with some thoughts about the implications of the asymmetric updates for judicial adoption of the 2010 Guidelines.     

Price-Performance Competition and the Merger Guidelines

While analysis of competition among differentiatedproducts has evolved under the revisions to theMerger Guidelines since 1982, it remains adhoc. This paper argues that price and performancecompetition among differentiated products is the rulerather than the exception and proposes methods toexplicitly analyze both forms of competition. Themethods address price and performance competition indemand and supply, explicitly incorporatingcompetitive responses as called for by the 1992 Guidelines. Empirical implementation is discussed for a specificmarket.     

Market Definition and the Merger Guidelines

The recently issued revision of the US Horizontal Merger Guidelines, like its predecessors and mirrored by similar guidelines throughout the world, devotes substantial attention to the market definition process and the implications of market shares in the market that is selected. Nevertheless, some controversy concerning the revised Guidelines questions their increased openness toward more direct, economically based methods of predicting the competitive effects of mergers. By contrast, this article suggests that, as a matter of economic logic, the Guidelines revision can only be criticized for its timidity. Indeed, economic principles unambiguously favor elimination of the market definition process altogether.     

The 1968 Merger Guidelines: In Praise of Committing to Restraint

The 1968 Merger Guidelines of the U.S. Department of Justice remain a model for competition agencies around the world because they courageously articulated when the Department would exercise its prosecutorial discretion by not challenging a horizontal merger.     

Merger Guidelines and the Limits of Our Understanding

The merger guidelines have evolved from a structural standard for determining the legality of mergers to an open-ended evaluation that attempts to predict whether some specific harm to competition is likely. These efforts have been unsuccessful; moreover, mergers generally contribute no positive economic gain. Blocking mergers that may have little or no adverse effect on competition will not cause significant economic harm; but the failure to interdict mergers that do cause harm imposes significant costs on the economy. Merger enforcement policy should return to the structural method of the 1968 Guidelines as well as impose stricter structural standards.     

Input market definition under department of Justice Merger Guidelines

This paper applies the Justice Department's Merger Guidelines to define a relevant antitrust market for an input. An expression for the elasticity of the residual demand facing a monopoly supplier of a factor of production is derived. It is shown that proper input market definition depends on the elasticity of residual demand confronting the downstream input users, on the supply elasticity in the downstream market (which, in turn, depends on the rate of capital depreciation there), on the cost of the input as a percentage of downstream sales, and on the extent to which the monopolist is integrated downstream.     

Cournot Oligopoly Conditions under which Any Horizontal Merger Is Profitable

Findings in economic theory suggest that horizontalmergers involving firms with aggregate market shareless than 50% are unlikely to be motivated by theconsequent reduction in competitivity. The resultsarise because, absent cost efficiencies, quantity-settingfirms in small mergers are impoverished by the merger.We demonstrate that this conclusion is a consequence ofthe strong restrictions imposed on the demand function,and we identify a well-behaved demand function suchthat any set of merging firms benefits from the reductionin competition even when there are no cost efficiencies.     

基于兼并成本和协同效应的横向并购研究

进入新世纪后,中国企业的并购活动越来越频繁。本文基于SSR模型,引入兼并成本和协同效应,研究并购厂商的并购动机以及并购行为对社会福利的影响,分析协同效应与兼并成本之间的关系。得出结论:当协同效应使厂商增加的利润大于兼并成本时,并购厂商总是愿意并购;并购后,福利在消费者和非并购厂商之间转移。当协同效应和兼并成本满足一定条件时,横向并购才可以增加社会福利。