THE FAILING FIRM DEFENSE—AN EQUITY-BASED APPROACH

Abstract

Abstract The failing firm defense is used to allow a seemingly anti-competitive merger, when one of the parties is a financially distressed firm. The basic argument is that harm to competition will ensue regardless of the merger, while allowing it provides a preferable alternative, maintaining commercial activity and protecting employment. The problem with the failing firm doctrine lies in antitrust enforcement agencies making highly uncertain predictions regarding future states of competition and broadening their discretion to encompass non-competition-related goals. As a result, enforcement agencies are pushed to extremes, succumbing to either type I errors (enjoining mergers that should have been approved) or type II errors (approving mergers that should have been blocked). Legal history suggests that regulators are excessively risk-averse, rarely accepting the failing firm defense. This paper offers a novel approach which minimizes the costs of both types of errors. We argue that rather than merely approve of, or forbid, the merger, antitrust agencies should also consider a third possibility: approval of the merger under the condition that the Government receive a passive equity stake in the merged entity in proportion to the actual post-merger decrease in market competition. The decrease in competition and the subsequent dilution of incumbent equity holders is to be decided ex post facto by comparing the change in an agreed-upon measure before and after the merger, preferably over several time intervals. This approach transforms the ex ante complex and uncertain regulatory decision to a rather simple ex post measurement problem. The proposed solution also deters firms from post-merger exploitation of market power, while allowing the public to be compensated for any harm to competition caused by the merger. All this, while reducing the costs of administrating the regulatory process. Finally, our approach also allows consideration of various stakeholders’ interests beyond direct consumers, that is, employees and creditors of the financially distressed firm, as well as economy-wide interests and the interest of the public at large.