Vertical Mergers, the Coase Theorem, and the Burden of Proof

30 Pages Posted: 21 Jun 2019

See all articles by Tim Brennan

Tim Brennan

University of Maryland, Baltimore County - Department of Public Policy; Resources for the Future

Date Written: June 17, 2019

Abstract

The ongoing challenge by the Department of Justice (DOJ) to the AT&T’s acquisition of Time Warner, and a prior challenge by DOJ and the Federal Communications Commission to Comcast’s acquisition of NBC-Universal, have increased attention on vertical mergers. The standard approach identifies a tactic that the merged firm would employ that is both profitable and harms consumers. This approach misses the target; a profitable but anticompetitive tactic may be necessary but is not sufficient. The “Coase Theorem” implies that courts and enforcement agencies should instead focus on why vertical integration is necessary to achieve an outcome that would be profitable to the merging firms. The focus on the tactic rather than why ownership matters presumes that vertical merger is necessary, without supporting theory or evidence. The same proposition should hold for horizontal mergers, but the required strength of evidence is greater for vertical mergers because mergers between complement providers are first-order beneficial and the conduct facilitated horizontal mergers but not vertical mergers is typically illegal.

Keywords: vertical merger, transaction cost, burden of proof, antitrust

JEL Classification: L40, K21, L42

Suggested Citation

Brennan, Tim, Vertical Mergers, the Coase Theorem, and the Burden of Proof (June 17, 2019). Available at SSRN: https://ssrn.com/abstract=3405632 or http://dx.doi.org/10.2139/ssrn.3405632

Tim Brennan (Contact Author)

University of Maryland, Baltimore County - Department of Public Policy ( email )

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