Andrew Gavil on Revising the Merger Guidelines

Andy Gavil —  27 October 2009

1.  Do the Merger Guidelines Need Revision?

Yes.  Conceptually, the current Guidelines incorporate multiple strands of intellectual and legal history with respect to merger analysis that have been layered one upon the other over time, but never effectively integrated.  This now encumbers the application of the Guidelines and may be inhibiting the government’s capacity to effectively and efficiently initiate merger challenges.

The current Guidelines remain strongly tethered to the “structural” school, with roots in the 1950s.  The influence of the structural school was evident in both the Philadelphia National Bank presumption and the 1968 Guidelines, and the 1982-97 Guidelines have retained the essential features of that tradition — reliance on market definition, market share calculation, and inferences about market power drawn from those shares.

The 1982 Guidelines also began the process of layering on top of that tradition, injecting elements of the “new learning,” which focused largely on expanding upon General Dynamics and the various bases for rebutting a structural case, and oligopoly theory.  As the Guidelines further evolved through 1997, various dimensions of oligopoly theory were added, especially in the sections on anticompetitive effects, reflecting the work of Stigler, Nash, Cournot, and Bertrand.  Yet additional economic thinking was inserted in the revised and expanded discussions of entry and efficiencies.  Today’s Guidelines, therefore, are an intellectual collage of various traditions in law and economics.

2. If yes, what is the most important revision that you would recommend and why?

Although it is a tall order, the agencies could undertake to clarify the overall conceptual framework of the Guidelines.  Currently, even though it does not describe actual agency practice, the Guidelines are perceived by courts as outlining a linear process, in which its five steps are mechanically undertaken in sequence, each proceeding only after the previous step is completed.  This in effect makes structural analysis a prerequisite to the evaluation of every merger and it impairs reliance on any other approach to evaluating likely anticompetitive effects or efficiencies more directly.  This approach wrongly elevates the status of market definition above competitive effects, which is the core concern of merger analysis – indeed of all antitrust analysis.

A related goal would be to harmonize the intellectual underpinnings of merger analysis with other areas of antitrust law.  This is especially important with respect to courts’ willingness to rely on direct effects evidence since the Supreme Court’s decisions in NCAA and Indiana Fed’n of Dentists.  Depending on the kind of evidence available, unilateral effects theory can be understood as an application of the direct effects approach to mergers.  In cases like Staples, for example, where natural experiments provided a basis for predicting the likely future effects of the merger, it is a sort of “predicted actual effects” doctrine.  As with NCAA and Indiana Fed’n of Dentists, in such cases defining markets and inferring market power indirectly should be understood as a surrogate that is unnecessary when more direct and more reliable indications of future market power are available.

A third and also related goal might be to more openly acknowledge that the Guidelines influence how courts assign burdens of production and proof.  It has become tradition for all government Guidelines to pronounce that they are not intended to specify burdens of proof or production; that instead, they simply outline the government’s internal processes for exercising prosecutorial discretion. But these assertions are at odds with actual practice once the government enters the courthouse.  The Merger Guidelines have been read to specify burdens: Steps 1 and 2 (market definition and anticompetitive effect) shift the burden to the defendant, who can then seek to rebut the prima facie case based on entry, efficiencies, or a failing firm defense.  And courts such as the D.C. Circuit in Baker Hughes and Heinz, have promoted the use a “sliding scale” to establish variable-strength presumptions and to evaluate burdens, often relying heavily on structural evidence as a burden shifter, a tradition rooted in Philadelphia Nat’l Bank.  Given that the Guidelines are applied this way, the agencies should consider saying a bit more about what should be sufficient to shift a burden of production in either direction and whether certain kinds and quantities of evidence shift a burden more emphatically than others.

The specification of burdens also has implications for the welfare standard being used to assess mergers.  This is most obvious in the efficiencies discussion, which currently tries to nuance the issue.  The text strongly suggests a commitment to a consumer welfare standard defined as giving greater weight to consumer surplus.  But there is a hint of equivocation in footnote 37, which contains some support for the argument that aggregate welfare may be a relevant consideration.  More clearly specifying the relative burdens of production could eliminate any remaining ambiguity regarding the welfare standard.  Although it is unlikely that very many cases would be influenced by the choice of a consumer welfare or aggregate welfare standard, the courts have generally applied the consumer welfare approach now dominant in the Guidelines and this should be more clearly acknowledged.

Finally, post-consummation merger challenges have become more common and yet the Guidelines are focused entirely on making predictions about likely future effects.  The agencies might consider either adding a section on post-consummation mergers or generating a separate guidance document that would do so.  The goal would be to explain how the post-consummation analysis of a merger might differ from those done pre-merger.  This again highlights the need to integrate thinking about the role of actual effects evidence, which becomes more central in post-consummation challenges.  Such a discussion also could include consideration of limited reliance on abbreviated or “quick look” types of analysis to shift burdens in appropriate post-consummation cases and reduce the costs of merger review.