Predicting the Competitive Effects of Mergers by Listening to Customers

This article explores the role of customers in informing competition authorities and courts about the likely effects of proposed mergers. It discusses when, and about what, customers are most likely to be valuable sources of information. It also discusses the potential limitations of customer testimony. Customer views can certainly be informative. However, they are best employed as a complement to, rather than a substitute for, economic analysis that employs more objective evidence. Although the welfare of consumers appears increasingly to have been accepted by competition authorities as the appropriate goal for merger policy, customers will not necessarily have available the information required to predict the economic consequences of a proposed merger. And even when they do, customers may be reluctant reliably and accurately to provide that information, or to express their true opinions, to investigators and before courts. Worse yet, customers may themselves stand to benefit from mergers that are anticompetitive, or may be harmed by mergers that are welfare-enhancing. Appreciating both the strengths and the limitations of customer input is critical to the cause of sound merger enforcement, not only in the U.S., but overseas as well. A growing number of countries, many of whom have less experience or expertise than do competition authorities in the U.S., have begun to adopt merger control policies themselves, and are in the process of developing and implementing investigative best practices. They, at least as much as we, can benefit from better understanding the advantages, as well as the potential pitfalls, of using the views of customers to help ensure the welfare of consumers.

Merger Review of Firms in Financial Distress

With the increased number of firms that are in some form of serious financial distress, once financing becomes more readily available to potential acquirers we might expect an increase in both the number and share of mergers where at least one of the parties is having difficulty staying afloat independently. This raises the importance of the policy question as to the appropriate standard to apply to such mergers. This paper shows that this standard--striking the best balance between the efficiency benefits and the potential anti-competitive effects that a merger might produce--is the same one given in the Merger Guidelines for any merger. Further, we show that requiring money-losing firms to satisfy the conditions demanded by the Guidelines "Failing Firm Defense" is appropriate even when the overall economy is going through very difficult times. We explain also that when the conditions required by the failing firm defense are satisfied, a proposed acquisition cannot be intended to generate an anticompetitive outcome and must be expected by the acquiring firm to generate efficiencies. This inference is shown to be not only economically sound, but also to be consistent with the Supreme Court decision in which the Court introduced the failing firm defense as a variety of the efficiency defense that it accepted in that case.

Appropriate Antitrust Policy Towards Single-Firm Conduct

In this article we distinguish between two types of single-firm conduct. The first, which we call "extraction," is conduct engaged in by the firm to capture surplus from what the firm has itself created independent of the conduct’s effect on rivals. The second, which we call “extension," is single firm conduct that increases the firm’s profit by weakening or eliminating the competitive constraints provided by products of rivals. We propose as a fundamental antitrust policy towards single-firm conduct the following: Conduct merely to extract surplus the firm has created independent of the conduct’s effect on rivals should be permitted. Conversely, conduct that extends the firm’s market power by impairing the competitive constraints imposed by rivals presents a legitimate cause for concern. We subscribe strongly to the view that an essential element of appropriate antitrust policy is to allow a firm to capture as much of the surplus that, by its own investment, innovation, industry or foresight, the firm has itself brought into existence. We believe that alternative approaches to single-firm conduct, including in particular ones aiming to enhance static efficiency at the possible cost of dynamic efficiency and ones seeking to maximize overall welfare through more targeted intervention on a case-by-case basis (not to mention the use of competition policy to protect competitors rather than consumers) threaten seriously to impede economic growth and welfare over time. A policy that goes further, and which permits all unilateral conduct regardless of competitive effects (perhaps on grounds that "even more profit will generate even more innovation") is considered below and rejected as overly lenient, inconsistent with widely accepted presumptions in favor of inter-firm competition, and unwise, at least under the current state of economic knowledge. But we note that this conclusion is one based on our current economic knowledge and should remain a topic of ongoing research. It requires an empirical assessment of the gains from motivating more competition ex ante versus the subsequent loss of competition ex post.Competition, Single-Firm Conduct, Monopolization, Antitrust

Proposal For A Market-Based Solution to Airport Delays

With the clamor rising over airport delays and with both the Congress and the Administration considering remedies, this paper advocates the use of market mechanisms, specifically slot auctions, to promote efficient usage of airport capacity, reduce airport delays, and, more generally, promote competition.

The Year in Review: Economics at the Antitrust Division, 2009–2010

Antitrust, Competition policy, Mergers,

Selected Economic Analysis at the Antitrust Division: The Year in Review

Antitrust, mergers, collusion, coordinated effects, unilateral effects,

The Year in Review: Economics at the Antitrust Division, 2006–2007

Antitrust, Competition policy, Mergers,