25 years of European merger control

We study the determinants of common European merger policy over its first 25 years, from 1990 to 2014. Using a novel dataset at the level of the relevant antitrust markets and containing all relevant merger cases notified to the European Commission, we evaluate how consistently arguments related to structural market parameters – dominance, rising concentration, barriers to entry, and foreclosure – were applied over time and across different geographic market definitions. On average, linear probability models overestimate the effects of structural indicators. Using non-parametric machine learning techniques, we find that dominance is positively correlated with competitive concerns, especially in markets with a substantial increase in post-merger concentration and in complex mergers. Yet, its importance decreased following the 2004 merger policy reform. Competitive concerns are also correlated with rising concentration, especially if entry barriers and foreclosure are of concern. The impact of these structural indicators in explaining competitive concerns is independent of the geographic market definition and does not change over time.     

Simulating Hospital Merger Simulations*

We perform a Monte Carlo experiment to assess the performance of three hospital merger simulation methods. Our analysis proceeds as follows: (i) specify a theoretical model of hospital markets and use it to generate “true” price effects for many simulated mergers; (ii) for each simulated merger, generate data of the kind commonly available in real-world merger analysis and apply the simulation methods to those data; and (iii) compare the predictions of the simulation methods to the true price effects. All three simulation methods perform reasonably well. We also develop a method for predicting price effects that extends Garmon [2017].     

An antitrust analysis of non-profit hospital mergers

This paper considers such issues involved in non-profit hospital mergers as relevant product and geographic markets and the impacts of mergers on competition. The roles of non-price competition, entry barriers, and merger-generated efficiencies are considered. Close attention is given to the relevance of the Justice Department Merger guideline to the hospital industry. Through detailed examination of four litigated or challenged cases, the geographic market is shown to depend upon particular medical services. Outpatient services are found to comprise a separate market from inpatient hospital services, and non-profit status is determined to warrant the usual antitrust merger treatment.     

Why strategic factor markets matter: “New” multinationals' geographic diversification and firm profitability

This study examines firm profitability differences among “new” multinational enterprises (NMNEs) pursuing geographic diversification into two distinct types of geographic locations based on the development of strategic factor markets. Building on strategic factor markets theory, we propose that firm‐specific advantages of NMNEs contribute differentially to firm profitability because they evolve differently given strategic factor market differences in host compared to home countries. Using a sample of Korean manufacturing MNEs during the 1993–2003 period, we find that geographic diversification into resource‐poorer host countries has a positive relationship with firm profitability, whereas geographic diversification into resource‐richer host countries has a U‐shaped relationship with firm profitability. Our study demonstrates why strategic factor markets—an important and often overlooked contextual factor—matter in exploring rationales for geographic diversification. Copyright © 2014 John Wiley & Sons, Ltd.     

Retail Mergers and Food Prices: Evidence from France

This paper analyzes the impact of a merger in the French supermarket industry on food prices. Using consumer panel data, we compare the changes in prices for merging and rival firms in affected and comparison markets. We use a novel definition of affected markets when some firms have a local pricing strategy and others a more centralized pricing strategy. We find that prices increase significantly following the merger, and that the merging firms lose market shares. For the rivals, the price increases are larger in local markets, in which concentration increased and differentiation changed after the merger.     

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.     

Applying “Merger Guidelines” market definition to (de)regulatory policy: Pros and cons

Since initially presented in the 1982 Department of Justice Horizontal Merger Guidelines, market definition has been adopted nearly worldwide as a framework to see if a merger would substantially lessen competition. This framework is useful for addressing the similarly counterfactual question of whether forbearance from regulation would lead to an increase in prices. In this context, however, the usefulness of a merger-based market definition is limited. Because the alternative to forbearance is regulation, and since some regulated rates may be below competitive levels, finding that deregulation would lead to market power as defined for mergers need not justify continued regulation. Forbearance in telecommunications highlights market definition questions regarding gross vs. marginal substitutes, dynamic efficiencies, and service bundling. It also reveals ambiguities in the meaning of “geographic market.” Market definition also has limited applicability if regulation exists not to prevent high prices but the abuse of dominance through predatory pricing.     

Defining market boundaries

This study shows how spatial information about product supply and demand can be used to determine the geographic extent of markets. It demonstrates that markets thus defined allow finer-grained measurement of competitive conditions than is possible using conventional approaches. Two procedures are developed and contrasted: one, called a natural market approach, is drawn from the Industrial Organization economics literature; the second, called an enactment approach, is associated with the open systems perspective on organizations. Applied to a set of hospitals in the San Francisco Bay area, geographic market boundaries established in these ways are shown to lead to finely defined markets, and to reveal strong variation in competitive conditions across the area—variation not detectable if conventional approaches to market definition are used. It is shown that these approaches have applications beyond geographic market definition, and can also be applied to define markets in term of product or service types.     

Marktabgrenzung und Marktbeherrschung auf Elektrizitätsmärkten

This article presents the current market definition in the different electricity markets as applied by the Bundeskartellamt (Federal Cartel Office). The market definition has been modified recently due to an increasing intensity of competition. The main focus is on the definition of the relevant product and geographic markets at the end consumer level. Moreover, the article considers implications of the market definition for competition policy.     

Bagging bundle benefits in broadband and media mergers: Lessons from Sky/Vodafone for antitrust analysis

The historic precedents in telecommunications antitrust findings have tended towards finding harm to competition when network operators integrate downstream and bundle the provision of applications and services. The reason for this is that market power in network provision is thought to be extended into the applications market(s). More recently however, proposed mergers have been between telecommunications and media distribution firms, both of whom have some degree of market power, already sell their own services in bundles, and who may or may not have been offering combined bundles already via contractual agreements. Examples include Sky/Vodafone in New Zealand, and Time Warner/AT&T in the United States as well as Vodafone/Unitymedia in Germany and Media Capital/Altice in Portugal. These complex proposed arrangements pose challenges to competition authorities, whose legal and procedural rules and precedents, especially those defining the relevant markets affected by the merger or vertical integration activity, have been developed from the analysis of simpler cases. These precedents may not be sufficient to analyse current cases, characterized by multiple products catering to heterogeneous consumer preferences, and consumers are not constrained to buying only one variant of the products in each of the upstream and downstream markets.We illustrate the challenges by way of a case study of the proposed merger between Sky and Vodafone, declined by the New Zealand Commerce Commission in February 2017. Limitations in existing market definition processes and the evaluation of market power where bundling already occurs risk overlooking complex demand-side interactions that influence the profitability and efficiency of various structural and contractual strategic choices. We propose that classic merger and antitrust analysis based on econometric cost-benefit analysis can be augmented by using simulation and numerical analysis of a range of bundle offers expected to be relevant in decision-making. We develop a simple model and use it to illustrate how it may be used to inform broadband and content mergers, and other complex antitrust cases, such the assessment of the effects of two-sided markets and firm pricing decisions.     

Localized Competition,Heterogeneous Firms and Vertical Relations

This paper investigates the link between firms' geographic configuration and market power in imperfect markets. We consider two related setups. The first illustrates the relevant characteristics of the pricing equilibrium. A main implication is that the equilibrium price vector changes in accordance with the firms' spatial configuration. The second, where firms operate as downstream retailers affiliated to rival upstream wholesalers, shows that upstream market power is strongly affected by an index of geographic concentration which reflects the spatial configuration of retailers. Finally, our analysis provides several insights for market delineation as well as merger evaluation and remedies.     

Market Definition?

The 2010 horizontal merger guidelines issued by the antitrust agencies de-emphasize market definition, which has been a foundation of merger law for decades and was required by previous guidelines. The justification for this change is that unilateral adverse price effects caused by mergers of firms that produce differentiated products are best assessed using analyses that do not depend on market definition. Though the guidelines unquestionably serve a value in illuminating actual agency practice, any marginal benefit in dropping the exercise of market determination from the merger review process is likely to be small, and the marginal cost may be substantial.     

Market Structure and Hospital Efficiency: Evaluating Potential Effects of Deregulation in a National Health Service

In this article we examine the potential effect of market structure on hospital technical efficiency as a measure of performance controlled by ownership and regulation. This study is relevant to provide an evaluation of the potential effects of recommended and initiated deregulation policies in order to promote market reforms in the context of a European National Health Service. Our goal was reached through three main empirical stages. Firstly, using patient origin data from hospitals in the region of Catalonia in 1990, we estimated geographic hospital markets through the Elzinga–Hogarty approach, based on patient flows. Then we measured the market level of concentration using the Herfindahl–Hirschman index. Secondly, technical and scale efficiency scores for each hospital was obtained specifying a Data Envelopment Analysis. According to the data nearly two-thirds of the hospitals operate under the production frontier with an average efficiency score of 0.841. Finally, the determinants of the efficiency scores were investigated using a censored regression model. Special attention was paid to test the hypothesis that there is an efficiency improvement in more competitive markets. The results suggest that the number of competitors in the market contributes positively to technical efficiency and there is some evidence that the differences in efficiency scores are attributed to several environmental factors such as ownership, market structure and regulation effects.     

Mergers that harm competitors

Standard models of oligopolistic interdependence predict that firms remaining outside of a horizontal merger will benefit from it. Why, then, do nonparticipating firms feel threatened by mergers? This paper shows that under reasonable conditions a non-participating firm is harmed by a merger. The analysis is based on a spatial equilibrium with suppliers and demanders located at fixed points. Mergers harm non-participating firms as a result of the decrease in the level of marginal costs of the merged firm attributable to decreased output in markets where competition is eliminated. This lowered marginal cost makes the merged firm a more formidable competitor in markets in which outsiders participate. This effect is in almost all cases sufficient to make outsiders worse off after a merger. Simulations on a sample of spatial equilibria show that the harm to outsiders is a reliable index of the harm that the merger causes to social welfare.     

Assessing the Efficacy of Structural Merger Remedies: Choosing Between Theories of Harm?

This paper shows that many structural remedies in a sample of European merger cases result in market structures which would probably not be cleared by the Competition Authority (CA) if they were the result of merger (rather than remedy). This is explained by the fact that the CA’s objective through remedy is to restore pre-merger competition, but markets are often highly concentrated even before merger. If so, the CA must often choose between clearing an ‘uncompetitive’ merger, or applying an unsatisfactory remedy. Here, the CA appears reluctant to intervene against coordinated effects, if doing so enhances a leader’s dominance.     

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.     

Die Marktabgrenzung in der Elektrizitätswirtschaft

This article presents the current market definition in the electricity sector as applied by the Bundeskartellamt (Federal Cartel Office). The main focus is on the definition of the relevant product and geographic markets at the end consumer level. Moreover, it considers implications of the market definition for competition policy. A central aspect of the electricity sector is the interdependence between the generation, distribution and end consumer levels. It follows that the generation level has a deterministic impact on the electricity sector in general and especially at the consumer level.     

Mergers of not-for-profit hospitals in the 1980s: Who were the most likely targets?

Proponents argue that mergers should be encouraged as a legitimate strategy to avert (presumably undesirable) hospital closures. More recently, antitrust activity directed at not-for-profit hospitals has intensified. This study attempts to shed some light on the policy debate by testing whether merger targets are indeed candidates for closure, namely hospitals with persistent losses. Acquisitions of independent not-for-profit hospitals by other hospitals and by multihospital corporations are observed from a national sample for the period 1982–1987. The likelihood of being acquired in during any year within that period is estimated using a discrete-time hazard rate model. We find no evidence to support the notion that hospitals with weak financial indicators are more likely to be acquired. Rather, we find that hospitals with high operating-margins that are located in less regulated markets, and to a certain extent in high-growth markets, are more likely to be acquired. These findings cast doubt on certain predictions found in the theoretical literature, but are in agreement with empirical studies of other industries.     

Quantitative Methods for Evaluating the Unilateral Effects of Mergers

We describe the quantitative modeling techniques that are used in horizontal merger review for the evaluation of unilateral effects, and discuss how the 2010 Horizontal Merger Guidelines helped legitimize these methods and motivate scholarly research. We cover markets that feature differentiated products pricing, auctions and negotiations, and homogeneous products, in turn. We also develop connections between quantitative modeling and market concentration screens that are based on the Herfindahl-Hirschman Index (HHI).

     

Ex post Merger Evaluation in the U.K. Retail Market for Books

This paper evaluates the price effects of the merger of two major U.K. book retailers. We use a dataset containing monthly scanner data on a sample of 200 books in 50 local markets for four years around the merger. We compare the price changes after the merger in shops located in areas where both chains were present before the merger and in areas where only one chain was present. We also investigate the country‐wide effect of the merger. We find that the merger did not result in any price increase either at the local or at the national level.