ABSTRACT Academic research is increasingly questioning whether the goals of competition law should extend beyond the traditional focus on economic efficiency and consumer welfare to include non‐economic issues such as social justice, democracy, environmental sustainability and equality. In this regard, the African experience is particularly valuable since public interest considerations (PICs) are a feature of merger control regimes in many African countries. After an analysis of PICs in Africa, the paper zooms in on South Africa's extensive experience in the field, particularly its legal test for determining when PICs are justified in merger assessment and offers recommendations that could inform other countries. Drawing on the South Africa merger assessment, this paper recommends that PICs and the competition standard be analysed separately but in an interrelated manner, as they complement each other. The likely effect of the merger on specific public interests must be identified and considered only when it is substantial and linked to the merger. Additionally, a merger should be prohibited only if the proposed remedies seeking to address the negative effects on the specific PIC are inadequate, inappropriate, disproportionate or unenforceable. Importantly, when PICs collide, competition agencies should balance each public interest against the others, focusing on whether the likely effect is substantial or whether the remedies are inadequate. In sum, competition agencies should adopt public‐interest merger guidelines that provide businesses with the necessary guidance on the legal test and procedures, enhancing legal certainty and attracting investment.

Abstract The emerging relationship between fintechs and banks has revealed antitrust's antiquation. At one time, scholars predicted that fintechs could democratize banking while providing a critical source of competition. But then banks began to acquire their digital rivals: about 900 acquisitions of fintechs have taken place since 2021. By merging or partnering, banks have squelched competition in an already concentrated market. Antitrust's absence in bank‐fintech deals is additionally curious because enforcers recognize that digital platforms such as fintechs are prone to monopolization. Despite this landscape, enforcers have asserted that the rise of fintechs should make antitrust even more deferential to bank mergers. The problem is that antitrust law adheres to an orthodox brand of economic theory about how people ostensibly behave. At its root, antitrust cannot intervene in most scenarios because rational actors are supposed to correct markets. This article shows that consumers in the digital era cannot always detect or mitigate their injuries, suggesting that antitrust is underenforced in fintech and other innovative sectors. Just as troublesome is the outdated assumption that consumers suffer harm as a collective group. With digital markets, anticompetitive conduct may injure only certain people such as low‐income persons. Recognizing these issues, the Department of Justice (DOJ) and Federal Trade Commission (FTC) issued new merger guidelines that seem to jettison outdated assumptions about when markets will self‐correct. The primary assertion of this article is that to preserve the promise of fintech and its ability to democratize financial services, the courts should embrace the agencies’ new approach.

The Role Of Uncertainty In The Future European Horizontal Merger Guidelines: Lessons Learned From Illumina/Grail

The elimination of double marginalization has been an important consideration in recent updates to the U.S. Horizontal and Vertical Merger Guidelines, in particular, and the evaluation of whether vertical mergers are pro- or anticompetitive, in general. This article extends frameworks for analyzing the effects of eliminating double marginalization on prices from situations with upstream and downstream monopolies to encompass Cournot oligopolies both upstream and downstream.

This Article summarizes and criticizes the DOJ/FTC’s 2023 Merger (M&A) Guidelines. Part I argues that the Agencies’ claim that the Guidelines are not binding, violates the antitrust laws’ addressees’ constitutional right to fair notice . Part II discusses the Agencies’ failure to articulate their understanding of the (M&A)-related tests of illegality the Clayton and Sherman Acts respectively, promulgate. Part III argues that the Agencies’ account of the U.S. antitrust law’s goals are ill-formulated and includes some goals of questionable desirability. Part IV explains why “market definitions” are inherently comprehensively arbitrary and why market-oriented approaches to analyzing the legality of (M&A)s are therefore inaccurate and their use by the Agencies is unconstitutional and avoidable. Part V delineates the various ways in which (M&A)s can affect the intensity of price-competition, analyzes the determinants of these possible impacts, and points out that the Guidelines mis-state the relevance of many such determinants and totally ignore many other such determinants. Part VI analyzes the various ways in which (M&A)s can affect the intensity of investment-competition, analyzes the determinants of the magnitudes of each of these possible impacts, points out that the Guidelines provide little information about the approaches the Agencies will take to these issues, and argues that the Agencies do not understand the determinants of the effectiveness of potential competition and may subscribe to the erroneous limit-pricing theory. Part VII delineates the correct way to analyze whether an (M or A) violates the Sherman Act and points out that the Guidelines provide almost no information about the way in which the DOJ will approach this issue. Part VIII criticizes various positions that the Guidelines take on the antitrust illegality of vertical (M&A)s.

Abstract This paper casts a critical eye on the role of efficiencies in the 2023 Merger Guidelines. This analysis addresses mergers that reduce production costs, those that reduce transaction costs, and those that improve product quality. In addition, this paper examines the antitrust treatment of mergers that change the market structure and thereby improve both consumer and social welfare. These include mergers of successive monopolists, mergers of complementary good producers, and mergers that create bilateral monopoly.

Healthcare services markets display a trend toward concentration in recent decades. 1,887 hospital mergers have been announced in the United States between 1998 and 2021. In one regional market—really, in several regional markets—the University of Pittsburgh Medical Center (UPMC) acquired twenty-eight hospitals between 1996 and 2019. UPMC’s consolidating tendency has not slowed down into the present: in June of 2023, UPMC signed a non-binding letter of intent to affiliate with the Washington Health System, which consists of two hospitals. Meanwhile, in December of 2023, the two federal agencies empowered to enforce federal antitrust law, the Federal Trade Commission (FTC) and the Department of Justice (DOJ), released new merger guidelines thatsignal a more aggressive approach to Section 7 of the Clayton Antitrust Act in seeking injunctions against corporate mergers. The new guidelines above all signal a stronger presumption of illegality with respect to mergers and thus require less concrete evidence of a merger’s future individualized detrimental impacts on consumer welfare than previous guidelines for FTC or DOJ’s antitrust division to prosecute such mergers. Whether these guidelines will acquire cachet in the courts and change the state of antitrust law as we know it is an open question.Similarly, in February of 2023, the Department of Justice retracted Clinton-era policy statements creating an “antitrust safety zone” for hospital mergers. This Note will consider how the changes in FTC and DOJ policy signaled by the 2023 guidelines bear upon the healthcare services market. Though ultimately it is not likely that the shift in the agencies’ policies will be perfectly reflected in judicial decisions, healthcare administrators and their legal counsel concerned with the expense of litigation can consult this Note to understand how the FTC and DOJ will analyze mergers in their industry under the new guidelines.

The Trump Administration has signaled its intention to continue reliance on the 2023 US Merger Guidelines. One important change in the Guidelines relative to their 2010 predecessor is the switch to a stronger structural presumption of anti-competitive harm. In this paper, we evaluate whether the new structural presumption improves the ability of US antitrust agencies to distinguish anti-competitive and benign mergers. Using simulated merger data, we find that the 2023 Guidelines may significantly increase the number of mergers flagged for review, reducing the false-negative rate but dramatically raising the false-positive rate. Alternative presumptions based solely on changes in the Herfindahl–Hirschman Index may outperform the 2023 Guidelines in detecting unilateral price effects. We also show that a stricter structural presumption does not appear to enhance the detection of coordinated effects.

Merger guidelines for the labor market

Abstract This article analyses the 2024 Commission Notice on the Relevant Market Definition and recent case law to review the European Commission’s approach to identifying the relevant market when intellectual property (IP) rights and innovation are present. The analysis is undertaken with reference to the 2014 Transfer Technology Block Exemption Regulation, the new R&D Block Exemption Regulation, the 2017 US IP Licensing Guidelines, and the new 2023 US Merger Guidelines. It identifies that the Commission has not ensured alignment between its regulations and guidelines, instead playing hopscotch with legal certainty. In terms of the broader contribution, this article reflects on the development of the interface between competition law and IP rights and the central part innovation now plays in European Union competition law enforcement. It marks a positive move away from Schumpeterian theories of innovation needing monopoly power towards Arrow’s idea that competition can be a key influencer of innovation. This shift in attitude comes alongside the recent regime change in US antitrust enforcement and the Commission’s own adoption of the Digtial Markets Act and Digital Service Act to regulate the digital economy. However, for IP rights, the ex-ante approach and reliance on ‘innovation spaces’ in defining the relevant market risks overstepping the competition law’s role as second-tier regulator of IP rights.

This article demonstrates that there is not now, and there should not be, an efficiencies rebuttal, defense, or exception in merger cases. A textualist analysis demonstrates that it does not exist in the plain words of the anti-merger statute, which prevents mergers that “may be substantially to lessen competition or to tend to create a monopoly.” The relevant Supreme Court cases explicitly hold that no efficiency rebuttal exists. Although holdings in subsequent lower court cases are mixed, none provided a sound justification for ignoring Supreme Court precedent. The article also shows that antitrust economists have redefined efficiencies in a manner that conflicts with mainstream economic theory. But even under the conventional approach, economic studies show that mergers only extremely rarely result in efficiencies, and there is no evidence that merger efficiencies are ever passed to consumers. For these and other reasons, including the unpredictability, cost, and difficulties of efficiency analysis, sound public policy requires no efficiency rebuttal in merger cases. When the federal antitrust enforcers released their 2023 Merger Guidelines, they shocked the antitrust world by asserting, for the first time in more than forty years, that no efficiency rebuttal is available for mergers challenged under the “tend to create a monopoly” half of the anti-merger statute. Our article demonstrates that not only were the new Merger Guidelines authors correct to do this, but they should also have gone further. They should have abolished the efficiency rebuttal completely, for all corporate mergers.

Merger review should reflect basic precepts of decision analysis, best practices in industrial organization economics, and teachings from related fields. Unfortunately, the analytical methods in modern merger guidelines fall short. Protocols violate standard prescriptions for information collection and decision-making, rely on a market definition paradigm that deviates significantly from core models of competitive interaction, fail to leverage central advances in understanding the efficiency consequences of mergers, and contravene or ignore fundamental dynamics relating to entry. This article elaborates correct analysis and contrasts it with that embodied in modern merger guidelines generally employed throughout the developed world, including the 2023 Merger Guidelines revision in the United States.

How should antitrust enforcers treat acquisitions by successful firms to enter new markets? Should a major pharmaceutical company with an extensive sales and distribution network be permitted to acquire a popular drug that does not compete against any of the drugs it already owns? Throughout American economic history, expansion by successful firms into new markets has played a vital role in promoting competition and spurring economic growth. However, acquisitions to enter new markets also can harm competition by enabling monopolists to enlarge their empires. The 2023 Merger Guidelines break new ground by announcing that the US antitrust agencies will challenge mergers and acquisitions that “could enable the merged firm to extend a dominant position from one market into a related market,” but they say very little about how such acquisitions will be evaluated. This article explains how antitrust enforcers can use economic evidence and theory to distinguish between acquisitions to enter new markets that are harmful and those that are beneficial.

In 2023, the federal antitrust agencies rewrote the nation's flagship merger policy document, as part of a broader “Neo-Brandeisian” effort to bring about a deep reform of the antitrust system. The result—the 2023 Merger Guidelines—has been highly controversial: celebrated by some as a revolutionary advance, and criticized by others as a step back toward a benighted past. This article evaluates the 2023 guidance against the arc of antitrust's modern history. It argues that the new guidance breaks a long trend of migration from structure toward welfare as the primary orientation of merger enforcement, but that it does so cautiously, by achieving a fraught ambiguity between welfarist and nonwelfarist policies. In inviting both revolutionary and evolutionary readings, the agencies have sacrificed clarity and discouraged beneficial deals, but they have also deferred—at least for now—a sharp conflict between those who would preserve antitrust's governing paradigm and those who would remake it.

Antitrust's North Star: The Continued and Nameless Judicial Deference Toward the Merger Guidelines

The 2023 Merger Guidelines and Market Definition: Doubling Down or Folding?

Revisiting the Brazilian Merger Guidelines: A Proposal for Digital Platforms

Abstract The accepted approach of competition law to non-horizontal mergers, largely based on the Chicago School of Antitrust Law and Economics paradigms, is criticized on both sides of the Atlantic as too lenient, disregarding developments of economic theory, and no longer adequate in the reality of the digital economy. Current economic research confirms the legitimacy of fears about the effects of non-horizontal concentrations that were raised before the Chicago School put them into doubt. The disbelief in the accuracy of the former US non-horizontal mergers policy resulted in the Federal Trade Commission and the Antitrust Division of the Department of Justice adopting new Vertical Merger Guidelines. The changes introduced were considered insufficient, which led to the unilateral repeal of the guidelines by the FTC and the start of work on new guidelines introducing a stricter approach. The new U.S. 2023 Merger Guidelines introduced far-reaching changes taking into account the modern views of economists and empirical research on vertical mergers. Comparatively, the EU Commission’s Non–Horizontal Merger Guidelines still do not fully correspond to what empirical research and contemporary economic theories say about the possible effects of vertical mergers. Thus, the revision of the EU guidelines seems necessary.

We estimate the effects of hospital-physician vertical integration on spending and utilization of physician-administered drugs for hematology-oncology, ophthalmology, and rheumatology. Using a 100% sample of Medicare fee-for-service medical claims from 2013 to 2017, we find that vertical integration shifts treatments away from physician offices and toward hospital outpatient departments. These shifts are accompanied by increases in physician-administered drug administration spending per procedure for all three specialties. Spending on Part B drugs also increasesfor hematologist-oncologists. At the same time, physician treatment intensity, as measured by the number of beneficiaries who receive drug infusions/injections and the number of drug infusions, decreases across all three specialties. These results suggest that the incentives of the Medicare reimbursement system, particularly site-of-care payment differentials and outpatient drugreimbursement rates, interact with vertical integration to lead to higher overall spending. Policies and merger guidelines should attempt to restrain spending increases attributed to vertical integration.

The fact that Amazon was allowed to acquire hundreds of companies as it rose to become the fourth most valuable U.S. company in terms of market capitalization and a leader in three lines of business has been viewed by some as damning evidence of underenforcement by the United States antitrust authorities. In this article we ask the obvious question: If the 2023 Guidelines had been in place instead of prior guidelines, what effects would they have had on Amazon’s development? To provide an answer, we identify relevant changes in the guidelines and then select for review a subset of Amazon’s 280 acquisitions over the period 1998 to 2022. In our counterfactual, we analyze five horizontal acquisitions, four vertical acquisitions, and two sets of serial acquisitions. We find that the 2023 Guidelines would have broadened the bases for potential challenges and thereby would have increased the likelihood that Amazon would have faced greater resistance from antitrust authorities. The lack of safe harbors, the plasticity of individual Guidelines, and the optionality to challenge mergers under alternative theories would have exposed most of Amazon’s acquisitions to challenge. The lack of meaningful guidance about which individual transactions would have been challenged suggests that going forward enforcer discretion will play a yet larger role. Regarding Amazon’s serial acquisitions of nearly one hundred technology firms, we find that the 2023 Guidelines would have provided multiple rationales for intervention. Therein lies a weakness in the Guidelines and in antitrust policy: the lack of a framework for assessing both the anticompetitive and procompetitive effects of such acquisitions in high-tech industries.