Merger Review Research Articles

Astroturf Campaigns: Transparency in Telecom Merger Review

Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This “astroturfing” undermines what Congress intended to be a “well-reasoned agency deliberation process” and makes the FCC’s notice-andcomment process less democratically legitimate. This Note argues that the FCC should adopt a financial conflicts of interest disclosure rule for all comments it receives, not just comments that include scientific or technological data. Administrative agencies’ anxiety about ensuring the integrity of science-based preferences also applies to values-based preferences because the FCC considers the effects on the public interest in making policy decisions.

Reviewing Wireless Mergers

The Federal Communications Commission can improve the transparency of its decision process by establishing a set of guidelines for its review of mergers. Its current process is opaque, and parties cannot discern the weights that it places on “public interest” goals in some areas and how those balance against harms in other areas. The antitrust agencies’ Merger Guidelines provide an example of how the Commission could signal more clearly its analytical process and push for more efficient remedies and lessen political pressure to undertake inefficient trade-offs such as requiring build out to areas unaffected by changes in competition due to a merger.

The Proposed Merger of Staples and Office Depot: Lessons from History and New Competitive Concerns

The proposed combination of Staples and Office Depot presents the Federal Trade Commission (FTC) with a host of merger review challenges. The transaction follows closely on the heels of the Office Depot/OfficeMax merger in 2013 and would complete a rapid 3-1 consolidation of the office supply superstore (OSS) market. Both retail and business-to-business customers may be significantly affected by the proposed transaction. The deal puts front and center the question whether evolving alternative business models for the sale of consumable office supplies are a viable substitute for OSSs. It also raises issues that the Commission recently addressed in the successfully enjoined merger of national broadline food service distributors Sysco and U.S. Foods - namely that a merger of the only two rivals in a national market may have adverse unilateral effects in a targeted customer market.The American Antitrust Institute (AAI) is concerned that the proposed transaction may substantially lessen competition in the market for the sale of consumable office supplies to large multi-regional or national customers on a contract basis (hereinafter “enterprise customer market” or “enterprise market”). In particular, we are concerned that the proposed transaction threatens substantial unilateral anticompetitive effects that alternative supply responses could not ameliorate, and that harm to customers in this market will be passed on to consumers. Some of these harms implicate unique dimensions of quality competition involving cyber security and supply chain stability. We also raise questions as to whether rapid 3-1 consolidation threatens to reverse recent positive competitive developments in the retail office supply market, as well as the competitive significance of merging the only “omnichannel” retailers principally devoted to office supplies.The analysis in this white paper is based on our review of publicly available information and conversations with industry experts and analysts. Because we do not have access to confidential or proprietary information that the Commission collects in the course of its investigation, we draw no conclusions as to whether the merger violates Section 7 of the Clayton Act. However, our analysis makes clear that the proposed merger warrants very close scrutiny by the Commission. Major themes that emerge from this analysis include: The Commission should determine whether there is a distinct relevant product market for the sale of consumable office supplies to large “enterprise” office supply customers on a contract basis, and if so, who participates in this market. This is consistent with the Commission’s successful approach to defining targeted customer markets in Sysco v. Fed. Trade Comm’n.The enterprise contract market likely is a relevant antitrust market because enterprise customers have no viable substitutes for the product and service offerings provided by OSSs. The next largest rivals are distant to Staples and Office Depot and are unable to compete on the scale and scope of the merging parties. Moreover, the merging firms may be the only participants in this market, because potential supply-side responses likely would fail to defeat a post-merger price increase in the market.The proposed transaction threatens substantial unilateral anticompetitive effects in the enterprise market, and possibly also in the broader market for all contract customers. Potential anticompetitive harm arises not only from the loss of ordinary head-to-head competition between the merging firms, which is substantial, but also from the loss of competition to provide superior cyber security to contract customers and by increased supply chain fragility resulting from elimination of any redundancy in the OSS channel. Potential anticompetitive effects are unlikely to be mitigated by repositioning or new entry.In its 2013 review of the OfficeDepot/OfficeMax merger, the Commission likely did not go far enough in distinguishing among competitive dynamics within and across the retail distribution channels through which OSSs provide products to end consumers. Although competition in the pure online retail channel is likely disciplined by national competition from Amazon and others, there are competitive concerns in the traditional superstore channel and in the emergence of omnichannel stores that warrant careful attention.

EU merger review of the acquisition of non-controlling minority shareholdings: where to now?

Abstract On 9 July 2014, the European Commission (the Commission) published its White Paper “Towards more effective EU merger control”, which reviewed the operation of the EU Merger Regulation (EUMR) ten years after the introduction of the substantive test of “significant impediment to substantial competition” (SIEC) and proposed certain specific improvements, including the review of non-controlling minority interests under the EUMR. The 2014 White Paper followed approximately one year of consultation with Member States and interested parties, and was accompanied by a Staff Working Document, which analyses in more detail the considerations underlying the policy proposals in the 2014 White Paper, and an Impact Assessment, which analyses the potential benefits and costs of the various policy options considered. Less than six months after the consultation on the 2014 White Paper closed, Competition Commissioner Margrethe Vestager indicated that the Commission is reconsidering its proposals to allow it to review the acquisition of non-controlling minority shareholdings under the EUMR. This decision has been welcomed by many in the business and legal community as the “targeted transparency system” proposed by the Commission had raised a number of concerns regarding proportionality, legal certainty, cost and administrative burden. Whilst we await the Commission’s next move, this article considers whether non-controlling minority shareholdings should be subject to EU merger control and the extent to which the Commission’s originally envisaged system adequately dealt with the issues it sought to address. This article also proposes a number of principles that the authors suggest should be taken into account when designing a balanced system of merger review for acquisitions of non-controlling minority shareholdings in which the burden of the additional review is proportionate to the goals pursued.

Re-Aligning Prospective Hospital Merger Guidance: Moving Beyond Concentration to More Meaningful Approaches

Mergers and acquisitions play a key role in industries facing disruptive change and the need to restructure effectively to meet future needs; transactions provide potential opportunities for substantial benefits. Significant realignment of the U.S. healthcare delivery system is underway, driven by economic, policy, and demographic factors, with many hospitals, particularly stand-alone hospitals, financially challenged. The effects of these trends are most visible in smaller metro areas, which often have greater hospital capacity than required to meet demand. Over 500 hospital transactions have occurred in recent years; about half involved stand-alone hospitals, many in smaller communities. An anticipated increase in hospital transactions in the near term suggests the importance of clear agency guidance on the factors that will distinguish transactions that are likely to be challenged.Agency guidance about future enforcement on hospital mergers contrasts with actual enforcement practice. Guidance emphasizes concentration and Merger Guidelines thresholds, even though the vast majority of past hospital mergers, including most of those that exceeded Guidelines thresholds, went unchallenged. Academic price-concentration studies play a uniquely prominent role in statements of enforcement intentions in the healthcare industry, even though those studies are largely dated and mixed in their findings. Limited clarity exists on factors that mattered to competitive effects analysis in concentrated markets with closely reviewed yet unchallenged mergers. Moreover, the modeling used in hospital merger review may not account for current and evolving market realities of healthcare delivery and purchasing. This paper reviews healthcare delivery trends in the context of recommendations for competitive effects analyses and guidance in industries characterized by dynamic change, differentiated products, large numbers of mergers, and low incidence of actual challenges. It shows that, where concentration thresholds are poor predictors of competitive effects, greater clarity is required of the specific factors other than structure that yielded assessments that mergers in highly concentrated markets were unlikely to result in a substantial lessening of competition. The many changes in healthcare markets necessitate closer scrutiny of economic models to assure they are robust and reflect market realities, including the responsiveness of rivals and payors. Given the substantial reliance on academic studies for guidance, we review the oft-cited concentration-price literature and find that it does not support the claimed systematic quantitative relationship. We undertook independently to address these issues empirically by updating a major study using a comprehensive and current commercial claims database covering 380 metropolitan areas. We found no systematic quantifiable relationship; instead myriad market and firm specific factors account for price variation. Finally, we present some suggestions for review of future transactions.

Arguments for the EU-US Convergence and against a Global Merger Control Regime

The internationalization of markets, i.e., globalization, has resulted in a number of transnational mergers during the past few years, which require ex ante notification filings in multiple jurisdictions. This requirement is costly for both the merging companies and regulators and creates uncertainty. Responding to this phenomenon, commentators have argued for the establishment of a global merger control policy administered by a global agency. I argue against this proposal for two reasons. First, I evaluate procedural concerns that include the requirement to give reasons and the third parties' and the merging parties' right to appeal the national regulators' decision. Second, I explore the debate as to what the goals of antitrust law should be and examine their biased application to particular facts. I illustrate my argument against the adoption of a global merger law applied by a single agency using the three recent mergers between US Airways and American Airlines, between Universal and EMI and between Microsoft and Skype. Lastly, I examine different solutions offered by commentators and propose a modest solution which would mitigate the problem of duplicative review of transnational mergers by the EU and the US To conclude, I advocate the desirability of EU-US convergence in merger control.

How Can Competition Agencies Use Behavioral Economics?

Behavioral economics is both mainstream and timely. The financial crisis raised important issues of market failure, weak regulation, moral hazard, and our poor understanding of how key markets operate. One therefore expects lawyers and economists to bring the current economic thinking to competition agencies, some of which are already taking note. How should the competition agencies respond? This article examines how competition agencies can consider behavioral economics' implications on four levels: first as a gap filler, that is, to help explain “real world” evidence that neoclassical economic theory cannot explain; second, to assess critically the assumptions of specific policies, such as merger review and cartel prosecutions; third, to revisit fundamental questions, such as what is competition and what are the goals of competition law; and fourth, to assess how behavioral economics will affect the degree of convergence of competition law among the over 100 jurisdictions with competition laws today.

Taming the “Foreign Tigers”

(ProQuest: ... denotes non-US-ASCII text omitted.)Thirty years after the launch of the reform and opening up policy, China finally implemented its first anti-trust law in 2008, a move lauded by an international law firm as a tremendous leap forward that brought the country squarely into the modern world of antitrust and competition 0) Yet, given the law's novelty on Chinese soil, few would have expected China to suddenly begin aggressively enforcing it. Since 2013, Chinese anti-trust regulators have become active in deploying the anti-trust law to initiate probes and impose hefty fines on industry associations, for- eign carmakers, eyewear makers, and baby formula manufacturers, mean- while justifying dawn raids on selected firms. Many of their high-profile targets are multinational firms that until then enjoyed a comfortable pres- ence in China. Facing tightened enforcement, foreign companies and cham- bers of commerce are complaining that regulators are using the law selectively against foreign firms and that investigations lack transparency and respect for the rule of law. Chinese regulators, on the other hand, argue that they are impartial towards domestic and foreign companies, and that they are merely enforcing the anti-trust law in order to create a level playing field for both domestic and foreign companies, benefit Chinese consumers, and bring China closer to the rule of law.Drawing upon this controversy, this article argues that China's rising anti- trust activism is explained by at least two factors. First, the Chinese state is pursuing an industrial policy to encourage indigenous innovation and grow national champions through a palette of regulatory tools. In this context, enforcement of anti-trust law emerges as an important policy tool not only to foster fair competition, but also to serve as a de facto interventionist measure to pressure foreign enterprises to cut prices and oblige them to contribute to the Chinese market and domestic companies. Second, the growing aggressiveness of anti-trust enforcement is possibly fuelled by in- ternal competition and political infighting among the three regulatory bod- ies, which are all striving to gain political capital under the current uncertain political dimate.The article will demonstrate that the resulting complaints from foreign companies and trade associations that they are being selec- tively targeted are not totally unfounded. To show that the enforcement of the anti-trust law is impartial, Chinese regulators must demonstrate its strength and willingness by striking hard against the monopolistic practices of domestic companies - particularly the powerful state-owned enterprises.Anti-monopoly law and recent enforcementAfter almost 15 years of drafting, China's Anti-Monopoly Law (AML) was finally promulgated in August 2007 and became effective one year later. Recognised as China's economic constitution, the AML is China's first com- prehensive competition law that oversees issues including merger control, monopoly agreements by multiple firms, and abuse of dominant market position. Its declared purposes include protecting market competition and the legitimate interests of consumers, and above all, protecting public in- terest and promoting the socialist market economy. The law is enforced by three governmental bodies. The National Development Reform Commission (NDRC), China's top planning agency responsible for the administrative con- trol of the economy, is tasked with overseeing pricing-related monopoly practices while retaining authority under the Price Law (1997). The State Administration of Industry and Commerce (SAIC) takes care of non- pric- ing-reiated monopoly practices. The Ministry of Commerce (MOFCOM) is responsible for merger review and monopolisation in foreign trade. Apart from the three enforcement agencies, the State Council has established the Anti-Monopoly Commission. A consultation and coordination body with no substantive enforcement powers, the Commission is responsible for organ- ising, coordinating and supervising AML-related activities. …

Quality Competition in Mobile Telecommunications: Evidence from Connecticut

Signal quality is a significant contributor to the overall quality of wireless telephone service, which competitive analyses often overlooks. To understand the competitive impact of signal quality investment on further consolidation in this industry, I use a market research survey of choice of wireless service provider and a government database on transmission base stations in Connecticut. Dropped call rates and local coverage improve as base station density increases, so I treat base station density as an endogenous product characteristic and relate it to the local value of wireless services. I find a marginal base station contributes a median 0.15% increase in own market share and a median 0.03% decrease in rival market share. Marginal base station costs are implied to be substantial, so if these costs can be effectively reduced through network integration after a merger, the merging firms and consumers can both benefit through increased base station provision. If such integration is not possible, consumers lose due to either a loss in variety of products or reduced incentives of merged firms to produce quality. These results suggest that merger review must pay careful attention to the potential for network integration in wireless and related industries.

China’s Antitrust Policy: Recent Developments and Decision Patterns

:In this paper, we review recent antitrust policy developments in China. First, we use a sample of all merger cases reviewed by the Ministry of Commerce (MOFCOM) from August 2008 to September 2012 to provide an econometric analysis of merger review patterns. We find that MOFCOM tends to impose restrictions on mergers involving large corporations and does not distinguish between horizontal mergers and vertical and conglomerate mergers. In addition, European firms and U.S. firms face higher chances of restrictions than do firms from other countries. Finally, we provide a qualitative analysis of the investigations against price agreements.

The 80th Anniversary of the 1934 Communications Act and the Inception of the Federal Communications Commission

For the 80th anniversary of the 1934 Communications Act and the creation of the modern Federal Communications Commission (FCC), Lawrence White and I invited experts in the field of telecommunications to reflect upon aspects of the 1934 Act and the FCC of their choosing for this special edition of the Review of Industrial Organization. We are pleased to have received five excellent articles that cover a range of topics from the decision to pass the 1934 Communications Act, historic spectrum allocation and reallocation, competitive aspects of spectrum transactions, regulation and competition in the broadcast industry, and finally the role of the FCC in merger reviews. Thomas Hazlett considers the origins of the 1934 Communications Act and evaluates three competing theories about the motivation of lawmakers for passing what appeared essentially to re-enact the 1927 Radio Act. Hazlett challenges Coase�s (1959) �error� theory and the �public interest� hypothesis by Moss and Fein (2003), both ...

Merger Review by the Federal Communications Commission: Comcast–NBC Universal

The Communications Act of 1934 created a dual review process in which mergers in the communications industry are reviewed by the Federal Communications Commission (FCC) as well as the antitrust authorities. Commentators have criticized dual review not only as costly and redundant, but also as subject to substantive and procedural abuse. The process of clearing the 2011 Comcast–NBC Universal merger provides a useful case study to examine whether such concerns are justified. A review of the empirical context reveals that the FCC intervened even though the relevant markets were not structured in a way that would ordinarily raise anticompetitive concerns. In addition, the FCC was able to use differences between its review process and that used by the Justice Department to extract concessions from the merging parties that had nothing to do with the merger and which were more properly addressed through general rulemaking. Moreover, the use of voluntary commitments also allowed the FCC to avoid subjecting certain aspects of its decision to public comment and immunized it from having to offer a reasoned explanation or subjecting its decision to judicial review. The aftermath of the merger provides an opportunity to assess whether the FCC’s intervention yielded consumer benefits.

Unilateral Effects Analysis in Merger Review: Limits and Opportunities

Many economists believe that unilateral effects analysis should dominate the merger review process for differentiated products. However, it is far from clear if these theoretical models are broadly applicable, as they impose monopoly-style entry assumptions that constrain the competitive process. By abstracting from the complexities of the market process, the standard unilateral effects analysis gives rise to tractable mathematical equilibriums. Of course, the equilibriums may not offer insights if the key assumptions are not valid. This paper will explore the limits to and opportunities for unilateral effects analysis, using the Landes-Posner model of a dominant firm as an initial example, before expanding the discussion to Nash-Bertrand models of competition. These Lerner-based modeling structures are problematic, especially when the entry-related assumptions are not credible. Because economic models may remain applicable even when their assumptions are not valid, the discussion addresses various types of effects evidence that could confirm the predictions of a specific unilateral effects model. Court precedent is reviewed, with an emphasis on a current understanding of the structural presumption, along with the applicability of effects evidence to litigation. By focusing the analysis on facts, unilateral effects analysis serves to aid the merger review process.

Antitrust in Zero-Price Markets: Foundations

“Zero-price markets,” wherein firms set the price of their goods or services at $0, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, travel booking, navigation and mapping systems, and myriad other products are now widely distributed at zero prices. But despite the exponential increase in the volume of zero-price products being consumed, antitrust institutions and analysts have failed to provide an adequate response to markets without prices.Modern antitrust law is firmly grounded in neoclassical economics — price theory. Steeped in price theory, preeminent antitrust theorists have unsurprisingly urged that without prices there can be no markets, or at least no exercise of market power. This heavy methodological dependence on positive prices has led federal courts and antitrust-enforcement agencies to overlook potentially massive consumer-welfare harms. The dramatic consolidation of the broadcast-radio industry as a result of deregulation in the late 1990s provides one example: during hundreds of merger reviews, the U.S. Department of Justice failed even to consider potential harm to listeners. Yet recent empirical research indicates that such harm likely occurred.These failures to conceive of zero-price markets as antitrust “markets” indicate how fundamentally zero prices challenge traditional theories and analytical frameworks. This Article establishes a novel taxonomy of customer-facing costs, distinguishing “market-signaling” from “non-market-signaling” costs. Crucially, it demonstrates that market-signaling costs are present in many zero-price contexts. The absence of positive prices thus does not foreclose antitrust scrutiny; “trade,” for purposes of the Sherman and Clayton Acts, encompasses zero-price transactions. To continue ignoring welfare harms in these markets would be both unjust and inefficient. The Article concludes by identifying antitrust law’s proper role within — and stance toward — zero-price markets.

Innovation Markets, Future Markets, or Potential Competition: How Should Competition Authorities Account for Innovation Competition in Merger Reviews?

The relevant competitors in regard to innovation might, but not necessarily do, correspond to the identified competitors on actual product markets. Hence, the conventional analysis of product markets, in order to assess the potential anticompetitive effects of mergers, is insufficient to capture innovation competition in its full extent. As a consequence, the aim of this article is to introduce and compare the existing alternative approaches that can, in principle, be used for the assessment of anticompetitive innovation effects in merger review. By focusing on the applied US Antitrust, it turns out that none of the existing approaches appears to be sufficient to fully account for innovation competition. However, the 'Innovation Market Analysis', the first framework especially designed for the assessment of innovation aspects, still might serve as a good starting point for the development of a revised assessment framework.

THE QUALITY OF ANALYSIS OF IRISH MERGER DECISIONS

Patrick Massey raises serious concerns about the quality of analysis in the Irish Competition Authority's merger determinations. One of the five mergers reviewed could have been cleared, others perhaps prohibited. Suggestions are made for improving the merger control process. A careful examination of the concerns put forward by Massey finds that several of Massey's are incorrect, invalid, or confused, accepts that sometimes Massey's concerns reflect legitimate differences in view, and demonstrates that in the one case where Massey points out an error, this error did not materially change the finding in the relevant case. Notwithstanding this analysis, there is considerable merit in Massey's suggestion for an ex post merger review of the Competition Authority's determinations, but little merit in his proposal for third-party appeals to be included in the forthcoming revision of competition law in Ireland.

Federal and State Authority for Network Neutrality and Broadband Regulation

Verizon’s challenge to the Federal Communications Commission’s 2010 Open Internet Order voided the substance of those rules. But even as the Commission lost the authority to enforce those rules, it gained substantial new regulatory powers. The D.C. Circuit expressly affirmed the Commission’s interpretation of section 706 of the Telecommunications Act of 1996, granting it general regulatory authority to promote the deployment of broadband infrastructure. The significance of this power can hardly be understated. The Commission has relied on this authority to preempt state statutes, to subsidize broadband deployment, and even to support, together with Title II of the Communications Act, new network neutrality rules. And the reach of section 706 extends beyond the federal commission and into state regulatory bodies: The statute explicitly vests state commissions with the authority to encourage the deployment of broadband to all Americans. Like the FCC, the states have pounced on this authority, using it to engage in substantive merger reviews, and to impose regulatory requirements on telecommunications companies.This concurrent grant of jurisdiction to the FCC and to state commissions thus has important implications for the unique brand of federalism that has dominated telecommunications regulation. Section 706’s dual grant of authority to federal and state regulators embraces an experimentalist approach to telecommunications regulation, allowing states to serve as laboratories of regulatory experiments, while empowering the FCC to generalize their successes.

Unilateral Effects Analysis in Merger Review: Limits and Opportunities

Many economists believe that unilateral effects analysis should dominate the merger review process for differentiated products. However, it is far from clear if these theoretical models are broadly applicable, as they impose monopoly-style entry assumptions that constrain the competitive process. By abstracting from the complexities of the market process, the standard unilateral effects analysis gives rise to tractable mathematical equilibriums. Of course, the equilibriums may not offer insights if the key assumptions are not valid. This paper will explore the limits to and opportunities for unilateral effects analysis, using the Landes-Posner model of a dominant firm as an initial example, before expanding the discussion to Nash-Bertrand models of competition. These Lerner-based modeling structures are problematic, especially when the entry-related assumptions are not credible. Because economic models may remain applicable even when their assumptions are not valid, the discussion addresses various types of effects evidence that could confirm the predictions of a specific unilateral effects model. Court precedent is reviewed, with an emphasis on a current understanding of the structural presumption, along with the applicability of effects evidence to litigation. By focusing the analysis on facts, unilateral effects analysis serves to aid the merger review process.

Innovation Markets, Future Markets, or Potential Competition: How Should Competition Authorities Account for Innovation Competition in Merger Reviews?

The relevant competitors in regard to innovation might, but not necessarily do, correspond to the identified competitors on actual product markets. Hence, the conventional analysis of product markets, in order to assess the potential anticompetitive effects of mergers, is insufficient to capture innovation competition in its full extent. As a consequence, the aim of this article is to introduce and compare the existing alternative approaches which can, in principle, be used for the assessment of anticompetitive innovation effects in merger review. By focusing on the applied U.S. Antitrust, it turns out that none of the existing approaches seems to be appropriate to fully account for innovation competition. However, the ‘Innovation Market Analysis’, the first framework especially designed for the assessment of innovation aspects, might still serve as a good starting point for the development of a revised assessment framework.

Shedding Some Light on the Dark Matter of Competition: Insights from the Strategic Management & Organizational Science Literature for the Consideration of Diversity Aspects in Merger Review

A merger between two innovation competitors is often suspected to reduce the variety of heterogeneous entities which are currently undertaking R&D or which are well situated to undertake R&D in a certain field. The consequential reduction of “diversity” can be detrimental to innovation because it reduces the number of independent sources for possible future innovations and might furthermore lead to an alignment of formerly different R&D programs. However, if “diversity” indeed benefits innovative performance, even merged firms should have an incentive to maintain it in-house. Therefore, this article aims to bring to light whether firms can indeed be expected to create or maintain “diversity” post-merger. By focusing on the strategic management and organizational science literature we will demonstrate that the creation/maintenance of independent entities is indeed considered as an important determinant for the innovativeness and general performance of firms. Nevertheless, we will also show that this strategy has several grave implementation problems and might be hampered by certain trade-offs. As a consequence, competition authorities cannot presume that a reduced “inter-firm diversity” will get substituted by an increased “intra-firm diversity” without fail.