Efficiencies in Merger Review: Global Antitrust Institute Comment on the DOJ-FTC Request for Information on Merger Enforcement

Abstract

The Global Antitrust Institute (“GAI”) respectfully submits this Comment to the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) in connection with their Request for Information on Merger Enforcement (“Merger RFI”). The GAI welcomes the opportunity to provide input on the proposed changes to the Horizontal Merger Guidelines (“HMGs”) based upon its extensive experience and expertise in antitrust law and economics. This particular GAI Comment focuses on Section 14 of the Merger RFI, in which the Agencies pose two questions that go to the heart of the treatment of efficiencies in merger review. First, the Agencies suggest (Merger RFI 14.a) that efficiencies may have no proper role whatsoever in merger review. Second, in case consideration of efficiencies is appropriate, the Agencies ask (Merger RFI 14.c) what degree of certainty should be applied to efficiencies evidence to establish cognizability, and in particular to establish merger-specificity. This Comment explains how efficiencies are integral to an accurate assessment of the competitive effects of a horizontal merger, and that efficiencies evidence should in principle be accorded equal consideration to other factors.

Keywords: antitrust, competition policy, horizontal mergers, vertical mergers, Merger Guidelines, Federal Trade Commission, Department of Justice, Clayton Act, Sherman Act, FTC Act, market power, efficiencies, competitive process, competitive externalities, compensating marginal cost reduction, Herfindahl-Hir

JEL Classification: D6, D61, D62, K2, K21, L1, L2, L22, L4, L40, L41