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.     

Geographic Market Definition in the Merger Guidelines: A Retrospective Analysis

Since the initial Merger Guidelines in 1968, the Department of Justice and Federal Trade Commission have revised their merger enforcement screen over the course of six versions. This article examines the evolution of the geographic market component of the Guidelines and the economic implications of changing standards of market delineation on merger enforcement. Using an illustration from the beer industry, we chronicle the development of geographic market definition and its varying effects on merger enforcement over the past 50 years.     

Economics at the FTC: Data Intensive Mergers and Policy R&D

Economics at the Federal Trade Commission (FTC) supports both the competition and consumer protection missions of the agency. In this year’s essay we discuss a range of activities focusing on data-intensive antitrust cases in the hospital and consumer products industries. We also discuss our most recent work on gasoline pricing. Policy-focused research and competition advocacy takes center stage as we discuss some health care advocacy work in the administration of pharmaceutical insurance benefits and efforts to understand the real estate business more completely. Finally, we describe our efforts to quantify the extent of “identity theft”.     

Do Court Decisions Drive the Federal Trade Commission’s Enforcement Policy on Merger Settlements?

Mergers are generally conglomerate in nature with only minor (if any) horizontal overlaps. Under U.S. law, an enforcement agency may challenge any anticompetitive aspect of the merger and the consequent delay associated with litigation would impose costs on the firm. These costs may give the enforcement agency “leverage” to extract a settlement even when the firm would prevail in court. This paper explores whether the FTC’s decisions to challenge transactions approximate the case law. We find that the representative enforcement regimes of the FTC and the courts are remarkably similar, although the FTC credits efficiencies, while courts consider buyer sophistication as a mitigating factor.     

Economics at the FTC: Retrospective Merger Analysis with a Focus on Hospitals

Economists at the Federal Trade Commission (FTC) support the agency’s competition and consumer protection missions. In this year’s essay we discuss efforts at the FTC and elsewhere to examine empirically the competitive effects of mergers. This work has ranged from subjective interview-based reports on post-merger behavior to more objective analyses of post-merger performance based on rigorous empirical analysis of prices. In this essay we discuss the merger retrospective literature generally, and focus on the FTC staff’s recent empirical analyses of consummated hospital mergers.     

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....     

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.     

Merger statistics and merger policy

It is widely believed that the 1950 amendment of Section 7 of the Clayton Antitrust Act has diverted merger activity away from horizontal and into conglomerate forms. Examination of the Federal Trade Commission Large Merger Series replicates existing substantiation of this belief, but only up until 1968. Further examination of the data shows a perceptible weakening of the horizontal-merger deterrent in the following eight years. One possible explanation is that all the attention devoted to the “conglomerate problem” after 1968 implied that horizontal mergers were neither as bad nor as illegal as existing case law had made them.     

The FTC in the 1980s

This paper reviews the antitrust activities of Federal Trade Commission during the 1980s with special emphasis on the role of economics and economists. We contrast the FTC during the 1980s to its record in the 1970s and conclude that the agency was more active during the 1980s than is popularly believed. Perhaps more significant than changes in the level of enforcement activity was the agency's move to a more economics-oriented approach to antitrust enforcement and an increased role for Commission economists. The paper also comments on what FTC economists learned about American industry during the 1980s.     

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.     

First-mover advantages from pioneering new markets: Comment

David F. Lean is an economist in the U.S. Federal Trade Commission's Bureau of Economics, Division of Consumer Protection, Washington, D.C. 20580. The views expressed in this Comment are those of the author and do not represent those of the Federal Trade Commission or any individual Commissioner.     

“High-Tech” Antitrust: Incoherent,Misguided, Obsolete,or None of the Above? Comments on Crandall-Jackson and Wright

That prominent antitrust cases have been in the “high-tech” arena is not surprising, since high-tech industries are often susceptible to the scale economies that lead to highly concentrated or monopoly markets. Crandall and Jackson’s observations on the IBM case are on point. Regarding AT&T, the salient observation is that recent changes in legal doctrine may make it impossible to bring antitrust cases in regulated industries. The problem with the Microsoft case was not that it was right or wrong, but that it was fundamentally incoherent. Wright’s critique of the Federal Trade Commission’s case against Intel is problematic because buyers in exclusion cases tend to be better off, not victims as they would be under collusion or anticompetitive mergers. As these observations apply more generally to cases in sectors that are not associated with high-tech, I offer a few thoughts on some antitrust issues that are particular to high-tech sectors, specifically how the prospect of innovation could affect market definition in merger cases and, more broadly, whether dynamic efficiencies reduce the need for antitrust enforcement.     

Economics at the FTC: The Google-DoubleClick Merger,Resale Price Maintenance,Mortgage Disclosures,and Credit Scoring in Auto Insurance

Economics at the Federal Trade Commission (FTC) supports both the competition and consumer protection missions of the agency. In this year’s essay we discuss competition activity with a summary of our work on the Google-DoubleClick merger and recent activity on resale price maintenance, an area in which FTC economists had done significant prior research. On the consumer policy front, we discuss our study of ways to improve mortgage disclosures to facilitate consumer shopping and competition. Finally, we discuss our study of the effects of credit scoring on prices paid for auto insurance with a focus on the effects of scores on different racial and ethnic groups.     

The Year in Economics at the FCC, 2010–11: Protecting Competition Online

The past year in economics at the Federal Communications Commission focused on protecting competition in developing online markets. Our review discusses important economic issues that are raised by the FCC’s Open Internet rulemaking (which is commonly referred to as “net neutrality”) and its review of Comcast’s programming joint venture with General Electric’s NBC Universal affiliate. The Open Internet rule focused on established online markets, while the Comcast/NBCU transaction addressed nascent competition online along with competition in video programming and distribution offline.     

An Empirical Analysis of Mexican Merger Policy

A newly created dataset including 239 decisions made by the Mexican Federal Competition Commission on horizontal mergers is used to estimate the different factors affecting the Commission’s resolution decisions. The decision-making process has been approximated by two different discrete choice models. Our results indicate that, contrary to the Commission’s objective, the presence of efficiency gains increases the probability of a case being challenged. We also find that factors different from the ones explicitly mentioned by the Commission have a significant effect upon the Commission’s final decision. In particular, the presence of a foreign company among the would-be merger firms significantly increases the likelihood of observing an allowed merger.      

Merger Policy at the Margin: Western Refining’s Acquisition of Giant Industries

In May 2007, a United States District Court declined to grant the Federal Trade Commission a preliminary injunction that would have blocked the merger of two petroleum refiners that served Albuquerque, New Mexico, and surrounding areas. This study compares estimates of the post-merger price effect to the price effects that were predicted by economic experts on both sides of the case. I find little scope to interpret the evidence as consistent with an anticompetitive post-merger price effect. I also highlight the difficulties that are involved in econometrically identifying small effects even with an abundance of pricing data.     

Economics at the FTC: Non-price Merger Effects and Deceptive Automobile Ads

Economists at the Federal Trade Commission analyze a wide range of activities, practices, and policies in support of the agency’s consumer protection and competition missions as demonstrated by the two economic analyses discussed in this article. The first section of this article describes the economic analysis of a proposed merger’s impact on non-price dimensions of competition in the daily fantasy sports market. The second section builds an economic model to quantify the harm to consumers from deceptive advertising in automobile markets.     

The Year in Economics at the FCC: A National Plan for Broadband

The past year in economics at the Federal Communications Commission (FCC) has focused on encouraging the adoption and deployment of high capacity Internet access and the associated networks, commonly termed “broadband.” Our article sketches important economic themes in the FCC’s National Broadband Plan to show how the application of basic principles of regulatory economics takes account of rapid technological change. We discuss natural monopoly regulation, externalities and cross-subsidies, network effects and interconnection, the allocation of scarce inputs, protecting and fostering competitive markets, and consumer protection and transparency as they apply to the development of broadband.     

Electricity Merger Analysis: Market Screens, Market Definition, and Other Lemmings

Much discussion and effort have been devoted to the use of market power screens to detect market power that might arise from existing generation asset portfolios or utility acquisition of new generation assets. The quest is to find the “Holy Grail”: a market power detection mechanism that minimizes the costs to all parties involved while finding the majority of market power exercises. This article contends that market power screens should be utilized with caution in policy and litigation applications because while they meet the criteria of minimizing enforcement costs, they are often unable to detect many types of market power exercises that an electric utility might undertake. The article begins with a discussion of the polestar for all screens—the Department of Justice/Federal Trade Commission Horizontal Merger Guidelines—and its limitations. Next, the article examines the accidentally correct, absolutely incorrect, and other outcomes that arise from the application of screens using FERC’s merger policy statement, “contestable load” analysis, and other examples. The Article concludes by noting that many types of market power exercises are undetectable with market power screens, and that better approaches would increase the probability of detection, given the low level of penalty current imposed upon those that wield market power.     

Economics at the FTC: Hospital Mergers,Authorized Generic Drugs,and Consumer Credit Markets

Economists at the Federal Trade Commission pursue the agency’s competition and consumer protection missions. In this year’s essay, in antitrust, we discuss various aspects of our hospital merger analyses as well as the effects of authorized generic drugs on consumers and competition. In consumer protection, we describe two ongoing studies on the use of credit-based insurance scores to price homeowners insurance, and the accuracy of consumers’ credit reports that are provided by credit bureaus.