This post is authored by Joshua D. Wright (University Professor of Law, George Mason University and former Commissioner, FTC); Douglas H. Ginsburg (Senior Circuit Judge, US Court of Appeals for the DC Circuit; Professor of Law, George Mason University; and former Assistant Attorney General, DOJ Antitrust Division); Tad Lipsky (Assistant Professor of Law, George Mason University; former Acting Director, FTC Bureau of Competition; former chief antitrust counsel, Coca-Cola; former Deputy Assistant Attorney General, DOJ Antitrust Division); and John M. Yun (Associate Professor of Law, George Mason University; former Acting Deputy Assistant Director, FTC Bureau of Economics).]
After much anticipation, the Department of Justice Antitrust Division and the Federal Trade Commission released a draft of the Vertical Merger Guidelines (VMGs) on January 10, 2020. The Global Antitrust Institute (GAI) will be submitting formal comments to the agencies regarding the VMGs and this post summarizes our main points.
The Draft VMGs supersede the 1984 Merger Guidelines, which represent the last guidance from the agencies on the treatment of vertical mergers. The VMGs provide valuable guidance and greater clarity in terms of how the agencies will review vertical mergers going forward. While the proposed VMGs generally articulate an analytical framework based upon sound economic principles, there are several ways that the VMGs could more deeply integrate sound economics and our empirical understanding of the competitive consequences of vertical integration.
In this post, we discuss four issues: (1) incorporating the elimination of double marginalization (EDM) into the analysis of the likelihood of a unilateral price effect; (2) eliminating the role of market shares and structural analysis; (3) highlighting that the weight of empirical evidence supports the proposition that vertical mergers are less likely to generate competitive concerns than horizontal mergers; and (4) recognizing the importance of transaction cost-based efficiencies.
Elimination of double marginalization is a unilateral price effect
EDM is discussed separately from both unilateral price effects, in Section 5, and efficiencies, in Section 9, of the draft VMGs. This is notable because the structure of the VMGs obfuscates the relevant economics of internalizing pricing externalities and may encourage the misguided view that EDM is a special form of efficiency.
When separate upstream and downstream entities price their products, they do not fully take into account the impact of their pricing decision on each other — even though they are ultimately part of the same value chain for a given product. Vertical mergers eliminate a pricing externality since the post-merger upstream and downstream units are fully aligned in terms of their pricing incentives. In this sense, EDM is indistinguishable from the unilateral effects discussed in Section 5 of the VMGs that cause upward pricing pressure. Specifically, in the context of mergers, just as there is a greater incentive, under certain conditions, to foreclose or raise rivals’ costs (RRC) post-merger (although, this does not mean there is an ability to engage in these behaviors), there is also an incentive to lower prices due to the elimination of a markup along the supply chain. Consequently, we really cannot assess unilateral effects without accounting for the full set of incentives that could move prices in either direction.
Further, it is improper to consider EDM in the context of a “net effect” given that this phrase has strong connotations with weighing efficiencies against findings of anticompetitive harm. Rather, “unilateral price effects” actually includes EDM — just as a finding that a merger will induce entry properly belongs in a unilateral effects analysis. For these reasons, we suggest incorporating the discussion of EDM into the discussion of unilateral effects contained in Section 5 of the VMGs and eliminating Section 6. Otherwise, by separating EDM into its own section, the agencies are creating a type of “limbo” between unilateral effects and efficiencies — which creates confusion, particularly for courts. It is also important to emphasize that the mere existence of alternative contracting mechanisms to mitigate double marginalization does not tell us about their relative efficacy compared to vertical integration as there are costs to contracting.
Role of market shares and structural analysis
In Section 3 (“Market Participants, Market Shares, and Market Concentration”), there are two notable statements. First,
[t]he Agencies…do not rely on changes in concentration as a screen for or indicator of competitive effects from vertical theories of harm.
This statement, without further explanation, is puzzling as there are no changes in concentration for vertical mergers. Second, the VMGs then go on to state that
[t]he Agencies are unlikely to challenge a vertical merger where the parties to the merger have a share in the relevant market of less than 20 percent, and the related product is used in less than 20 percent of the relevant market.
The very next sentence reads:
In some circumstances, mergers with shares below the thresholds can give rise to competitive concerns.
From this, we conclude that the VMGs are adopting a prior belief that, if both the relevant product and the related product have a less than 20 percent share in the relevant market, the acquisition is either competitively neutral or benign. The VMGs make clear, however, they do not offer a safe harbor. With these statements, the agencies run the risk that the 20 percent figure will be interpreted as a trigger for competitive concern. There is no sound economic reason to believe 20 percent share in the relevant market or the related market is of any particular importance to predicting competitive effects. The VMGs should eliminate the discussion of market shares altogether. At a minimum, the final guidelines would benefit from some explanation for this threshold if it is retained.
Empirical evidence on the welfare impact of vertical mergers
In contrast to vertical mergers, horizontal mergers inherently involve a degree of competitive overlap and an associated loss of at least some degree of rivalry between actual and/or potential competitors. The price effect for vertical mergers, however, is generally theoretically ambiguous — even before accounting for efficiencies — due to EDM and the uncertainty regarding whether the integrated firm has an incentive to raise rivals’ costs or foreclose. Thus, for vertical mergers, empirically evaluating the welfare effects of consummated mergers has been and remains an important area of research to guide antitrust policy.
Consequently, what is noticeably absent from the draft guidelines is an empirical grounding. Consistent empirical findings should inform agency decision-making priors. With few exceptions, the literature does not support the view that these practices are used for anticompetitive reasons — see Lafontaine & Slade (2007) and Cooper et al. (2005). (For an update on the empirical literature from 2009 through 2018, which confirms the conclusions of the prior literature, see the GAI’s Comment on Vertical Mergers submitted during the recent FTC Hearings.) Thus, the modern antitrust approach to vertical mergers, as reflected in the antitrust literature, should reflect the empirical reality that vertical relationships are generally procompetitive or neutral.
The bottom line is that how often vertical mergers are anticompetitive should influence our framework and priors. Given the strong empirical evidence that vertical mergers do not tend to result in welfare losses for consumers, we believe the agencies should consider at least the modest statement that vertical mergers are more often than not procompetitive or, alternatively, vertical mergers tend to be more procompetitive or neutral than horizontal ones. Thus, we believe the final VMGs would benefit from language similar to the 1984 VMGs: “Although nonhorizontal mergers are less likely than horizontal mergers to create competitive problems, they are not invariably innocuous.”
Transaction cost efficiencies and merger specificity
The VMGs address efficiencies in Section 8. Under the VMGs, the Agencies will evaluate efficiency claims by the parties using the approach set forth in Section 10 of the 2010 Horizontal Merger Guidelines. Thus, efficiencies must be both cognizable and merger specific to be considered by the agencies.
In general, the VMGs also adopt an approach that is consistent with the teachings of the robust literature on transaction cost economics, which recognizes the costs of using the price system to explain the boundaries of economic organizations, and the importance of incorporating such considerations into any antitrust analyses. In particular, this literature has demonstrated, both theoretically and empirically, that the decision to contract or vertically integrate is often driven by the relatively high costs of contracting as well as concerns regarding the enforcement of contracts and opportunistic behavior. This literature suggests that such transactions cost efficiencies in the vertical merger context often will be both cognizable and merger-specific and rejects an approach that would presume such efficiencies are not merger specific because they can be theoretically achieved via contract.
While we agree with the overall approach set out in the VMGs, we are concerned that the application of Section 8, in practice, without more specificity and guidance, will be carried out in a way that is inconsistent with the approach set out in Section 10 of the 2010 HMGs.
Overall, the agencies deserve credit for highlighting the relevant factors in assessing vertical mergers and for not attempting to be overly aggressive in advancing untested merger assessment tools or theories of harm.
The agencies should seriously consider, however, refinements in a number of critical areas:
- First, discussion of EDM should be integrated into the larger unilateral effects analysis in Section 5 of the VMGs.
- Second, the agencies should eliminate the role of market shares and structural analysis in the VMGs.
- Third, the final VMGs should acknowledge that vertical mergers are less likely to generate competitive concerns than horizontal mergers.
- Finally, the final VMGs should recognize the importance of transaction cost-based efficiencies.
We believe incorporating these changes will result in guidelines that are more in conformity with sound economics and the empirical evidence.