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[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by Noah Phillips[1] (Commissioner of the U.S. Federal Trade Commission).]   

Never let a crisis go to waste, or so they say. In the past two weeks, some of the same people who sought to stop mergers and acquisitions during the bull market took the opportunity of the COVID-19 pandemic and the new bear market to call to ban M&A. On Friday, April 24th, Rep. David Cicilline proposed that a merger ban be included in the next COVID-19-related congressional legislative package.[2] By Monday, Senator Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, warning of “predatory” M&A and private equity “vultures”, teamed up with a similar proposal.[3] 

I’m all for stopping anticompetitive M&A that we cannot resolve. In the past few months alone, the Federal Trade Commission has been quite busy, suing to stop transactions in the hospital, e-cigarette, coal, body-worn camera, razor, and gene sequencing industries, and forcing deals to stop in the pharmaceutical, medical staffing, and consumer products spaces. But is a blanket ban, unprecedented in our nation’s history, warranted, now? 

The theory that the pandemic requires the government to shut down M&A goes something like this: the antitrust agencies are overwhelmed and cannot do the job of reviewing mergers under the Hart-Scott-Rodino (HSR) Act, which gives the U.S. antitrust agencies advance notice of certain transactions and 30 days to decide whether to seek more information about them.[4] That state of affairs will, in turn, invite a rush of companies looking to merge with minimal oversight, exacerbating the problem by flooding the premerger notification office (PNO) with new filings. Another version holds, along similar lines, that the precipitous decline in the market will precipitate a merger “wave” in which “dominant corporations” and “private equity vultures” will gobble up defenseless small businesses. Net result: anticompetitive transactions go unnoticed and unchallenged. That’s the theory, at least as it has been explained to me. The facts are different.

First, while the restrictions related to COVID-19 require serious adjustments at the antitrust agencies just as they do at workplaces across the country (we’re working from home, dealing with remote technology, and handling kids just like the rest), merger review continues. Since we started teleworking, the FTC has, among other things, challenged Altria’s $12.8 billion investment in JUUL’s e-cigarette business and resolved competitive concerns with GE’s sale of its biopharmaceutical business to Danaher and Ossur’s acquisition of a competing prosthetic limbs manufacturer, College Park. With our colleagues at the Antitrust Division of the Department of Justice, we announced a new e-filing system for HSR filings and temporarily suspended granting early termination. We sought voluntary extensions from companies. But, in less than two weeks, we were able to resume early termination—back to “new normal”, at least. I anticipate there may be additional challenges; and the FTC will assess constraints in real-time to deal with further disruptions. But we have not sacrificed the thoroughness of our investigations; and we will not.

Second, there is no evidence of a merger “wave”, or that the PNO is overwhelmed with HSR filings. To the contrary, according to Bloomberg, monthly M&A volume hit rock bottom in April – the lowest since 2004. As of last week, the PNO estimates nearly 60% reduction in HSR reported transactions during the past month, compared to the historical average. Press reports indicate that M&A activity is down dramatically because of the crisis. Xerox recently announced it was suspending its hostile bid for Hewlett-Packard ($30 billion); private equity firm Sycamore Partners announced it is walking away from its takeover of Victoria’s Secret ($525 million); and Boeing announced it is backing out of its merger with Embraer ($4.2 billion) — just a few examples of companies, large corporations and private equity firms alike, stopping M&A on their own. (The market is funny like that.)

Slowed M&A during a global pandemic and economic crisis is exactly what you would expect. The financial uncertainty facing companies lowers shareholder and board confidence to dive into a new acquisition or sale. Financing is harder to secure. Due diligence is postponed. Management meetings are cancelled. Agreeing on price is another big challenge. The volatility in stock prices makes valuation difficult, and lessens the value of equity used to acquire. Cash is needed elsewhere, like to pay workers and keep operations running. Lack of access to factories and other assets as a result of travel restrictions and stay-at-home orders similarly make valuation harder. Management can’t even get in a room to negotiate and hammer out the deal because of social distancing (driving a hard bargain on Zoom may not be the same).

Experience bears out those expectations. Consider our last bear market, the financial crisis that took place over a decade ago. Publicly available FTC data show the number of HSR reported transactions dropped off a cliff. During fiscal year 2009, the height of the crisis, HSR reported transactions were down nearly 70% compared to just two years earlier, in fiscal year 2007. Not surprising.

Source: https://www.ftc.gov/site-information/open-government/data-sets

Nor should it be surprising that the current crisis, with all its uncertainty and novelty, appears itself to be slowing down M&A.

So, the antitrust agencies are continuing merger review, and adjusting quickly to the new normal. M&A activity is down, dramatically, on its own. That makes the pandemic an odd excuse to stop M&A. Maybe the concern wasn’t really about the pandemic in the first place? The difference in perspective may depend on one’s general view of the value of M&A. If you think mergers are mostly (or all) bad, and you discount the importance of the market for corporate control, the cost to stopping them all is low. If you don’t, the cost is high.[5]

As a general matter, decades of research and experience tell us that the vast majority of mergers are either pro-competitive or competitively-neutral.[6] But M&A, even dramatically-reduced, also has an important role to play in a moment of economic adjustment. It helps allocate assets in an efficient manner, for example giving those with the wherewithal to operate resources (think companies, or plants) an opportunity that others may be unable to utilize. Consumers benefit if a merger leads to the delivery of products or services that one company could not efficiently provide on its own, and from the innovation and lower prices that better management and integration can provide. Workers benefit, too, as they remain employed by going concerns.[7] It serves no good, including for competition, to let companies that might live, die.[8]

M&A is not the only way in which market forces can help. The antitrust agencies have always recognized pro-competitive benefits to collaboration between competitors during times of crisis.  In 2005, after hurricanes Katrina and Rita, we implemented an expedited five-day review of joint projects between competitors aimed at relief and construction. In 2017, after hurricanes Harvey and Irma, we advised that hospitals could combine resources to meet the health care needs of affected communities and companies could combine distribution networks to ensure goods and services were available. Most recently, in response to the current COVID-19 emergency, we announced an expedited review process for joint ventures. Collaboration can be concerning, so we’re reviewing; but it can also help.

Our nation is going through an unprecedented national crisis, with a horrible economic component that is putting tens of millions out of work and causing a great deal of suffering. Now is a time of great uncertainty, tragedy, and loss; but also of continued hope and solidarity. While merger review is not the top-of-mind issue for many—and it shouldn’t be—American consumers stand to gain from pro-competitive mergers, during and after the current crisis. Those benefits would be wiped out with a draconian ‘no mergers’ policy during the COVID-19 emergency. Might there be anticompetitive merger activity? Of course, which is why FTC staff are working hard to vet potentially anticompetitive mergers and prevent harm to consumers. Let’s let them keep doing their jobs.


[1] The views expressed in this blog post are my own and do not necessarily reflect the views of the Federal Trade Commission or any other commissioner. An abbreviated version of this essay was previously published in the New York Times’ DealBook newsletter. Noah Phillips, The case against banning mergers, N.Y. Times, Apr. 27, 2020, available at https://www.nytimes.com/2020/04/27/business/dealbook/small-business-ppp-loans.html.

[2] The proposal would allow transactions only if a company is already in bankruptcy or is otherwise about to fail.

[3] The “Pandemic Anti-Monopoly Act” proposes a merger moratorium on (1) firms with over $100 million in revenue or market capitalization of over $100 million; (2) PE firms and hedge funds (or entities that are majority-owned by them); (3) businesses that have an exclusive patent on products related to the crisis, such as personal protective equipment; and (4) all HSR reportable transactions.

[4] Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a. The antitrust agencies can challenge transactions after they happen, but they are easier to stop beforehand; and Congress designed HSR to give us an opportunity to do so.

[5] Whatever your view, the point is that the COVID-19 crisis doesn’t make sense as a justification for banning M&A. If ban proponents oppose M&A generally, they should come out and say that. And they should level with the public about just how much they propose to ban. The specifics of the proposals are beyond the scope of this essay, but it’s worth noting that the “large companies [gobbling] up . . . small businesses” of which Sen. Warren warns include any firm with $100 million in annual revenue and anyone making a transaction reportable under HSR. $100 million seems like a lot of money to many of us, but the Ohio State University National Center for the Middle Market defines a mid-sized company as having annual revenues between $10 million and $1 billion. Many if not most of the transactions that would be banned look nothing like the kind of acquisitions ban proponents are describing.

[6] As far back as the 1980s, the Horizontal Merger Guidelines reflected this idea, stating: “While challenging competitively harmful mergers, the Department [of Justice Antitrust Division] seeks to avoid unnecessary interference with the larger universe of mergers that are either competitively beneficial or neutral.” Horizontal Merger Guidelines (1982); see also Hovenkamp, Appraising Merger Efficiencies, 24 Geo. Mason L. Rev. 703, 704 (2017) (“we tolerate most mergers because of a background, highly generalized belief that most—or at least many—do produce cost savings or improvements in products, services, or distribution”); Andrade, Mitchell & Stafford, New Evidence and Perspectives on Mergers, 15 J. ECON. PERSPECTIVES 103, 117 (2001) (“We are inclined to defend the traditional view that mergers improve efficiency and that the gains to shareholders at merger announcement accurately reflect improved expectations of future cash flow performance.”).

[7] Jointly with our colleagues at the Antitrust Division of the Department of Justice, we issued a statement last week affirming our commitment to enforcing the antitrust laws against those who seek to exploit the pandemic to engage in anticompetitive conduct in labor markets.

[8] The legal test to make such a showing for an anti-competitive transaction is high. Known as the “failing firm defense”, it is available only to firms that can demonstrate their fundamental inability to compete effectively in the future. The Horizontal Merger Guidelines set forth three elements to establish the defense: (1) the allegedly failing firm would be unable to meet its financial obligations in the near future; (2) it would not be able to reorganize successfully under Chapter 11; and (3) it has made unsuccessful good-faith efforts to elicit reasonable alternative offers that would keep its tangible and intangible assets in the relevant market and pose a less severe danger to competition than the actual merger. Horizontal Merger Guidelines § 11; see also Citizen Publ’g v. United States, 394 U.S. 131, 137-38 (1969). The proponent of the failing firm defense bears the burden to prove each element, and failure to prove a single element is fatal. In re Otto Bock, FTC No. 171-0231, Docket No. 9378 Commission Opinion (Nov. 2019) at 43; see also Citizen Publ’g, 394 U.S. at 138-39.

[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by John Newman, Associate Professor, University of Miami School of Law; Advisory Board Member, American Antitrust Institute; Affiliated Fellow, Thurman Arnold Project, Yale; Former Trial Attorney, DOJ Antitrust Division.)

Cooperation is the basis of productivity. The war of all against all is not a good model for any economy.

Who said it—a rose-emoji Twitter Marxist, or a card-carrying member of the laissez faire Chicago School of economics? If you guessed the latter, you’d be right. Frank Easterbrook penned these words in an antitrust decision written shortly after he left the University of Chicago to become a federal judge. Easterbrook’s opinion, now a textbook staple, wholeheartedly endorsed a cooperative agreement between two business owners not to compete with each another.

But other enforcers and judges have taken a far less favorable view of cooperation—particularly when workers are the ones cooperating. A few years ago, in an increasingly rare example of interagency agreement, the DOJ and FTC teamed up to argue against a Seattle ordinance that would have permitted drivers to cooperatively bargain with Uber and Lyft. Why the hostility from enforcers? “Competition is the lynchpin of the U.S. economy,” explained Acting FTC Chairman Maureen Ohlhausen.

Should workers be able to cooperate to counter concentrated corporate power? Or is bellum omnium contra omnes truly the “lynchpin” of our industrial policy?

The coronavirus pandemic has thrown this question into sharper relief than ever before. Low-income workers—many of them classified as independent contractors—have launched multiple coordinated boycotts in an effort to improve working conditions. The antitrust agencies, once quick to condemn similar actions by Uber and Lyft drivers, have fallen conspicuously silent.

Why? Why should workers be allowed to negotiate cooperatively for a healthier workplace, yet not for a living wage? In a society largely organized around paying for basic social services, money is health—and even life itself.

Unraveling the Double Standard

Antitrust law, like the rest of industrial policy, involves difficult questions over which members of society can cooperate with one another. These laws allocate “coordination rights”. Before the coronavirus pandemic, industrial policy seemed generally to favor allocating these rights to corporations, while simultaneously denying them to workers and class-action plaintiffs. But, as the antitrust agencies’ apparent about-face on workplace organizing suggests, the times may be a-changing.

Some of today’s most existential threats to societal welfare—pandemics, climate change, pollution—will best be addressed via cooperation, not atomistic rivalry. On-the-ground stakeholders certainly seem to think so. Absent a coherent, unified federal policy to deal with the coronavirus pandemic, state governors have reportedly begun to consider cooperating to provide a coordinated regional response. Last year, a group of auto manufacturers voluntarily agreed to increase fuel-efficiency standards and reduce emissions. They did attract an antitrust investigation, but it was subsequently dropped—a triumph for pro-social cooperation. It was perhaps also a reminder that corporations, each of which is itself a cooperative enterprise, can still play the role they were historically assigned: serving the public interest.

Going forward, policy-makers should give careful thought to how their actions and inactions encourage or stifle cooperation. Judge Easterbrook praised an agreement between business owners because it “promoted enterprise”. What counts as legitimate “enterprise”, though, is an eminently contestable proposition.

The federal antitrust agencies’ anti-worker stance in particular seems ripe for revisiting. Its modern origins date back to the 1980s, when President Reagan’s FTC challenged a coordinated boycott among D.C.-area criminal-defense attorneys. The boycott was a strike of sorts, intended to pressure the city into increasing court-appointed fees to a level that would allow for adequate representation. (The mayor’s office, despite being responsible for paying the fees, actually encouraged the boycott.) As the sole buyer of this particular type of service, the government wielded substantial power in the marketplace. A coordinated front was needed to counter it. Nonetheless, the FTC condemned the attorneys’ strike as per se illegal—a label supposedly reserved for the worst possible anticompetitive behavior—and the U.S. Supreme Court ultimately agreed.

Reviving Cooperation

In the short run, the federal antitrust agencies should formally reverse this anti-labor course. When workers cooperate in an attempt to counter employers’ power, antitrust intervention is, at best, a misallocation of scarce agency resources. Surely there are (much) bigger fish to fry. At worst, hostility to such cooperation directly contravenes Congress’ vision for the antitrust laws. These laws were intended to protect workers from concentrated downstream power, not to force their exposure to it—as the federal agencies themselves have recognized elsewhere.

In the longer run, congressional action may be needed. Supreme Court antitrust case law condemning worker coordination should be legislatively overruled. And, in a sharp departure from the current trend, we should be making it easier, not harder, for workers to form cooperative unions. Capital can be combined into a legal corporation in just a few hours, while it takes more than a month to create an effective labor union. None of this is to say that competition should be abandoned—much the opposite, in fact. A market that pits individual workers against highly concentrated cooperative entities is hardly “competitive”.

Thinking more broadly, antitrust and industrial policy may need to allow—or even encourage—cooperation in a number of sectors. Automakers’ and other manufacturers’ voluntary efforts to fight climate change should be lauded and protected, not investigated. Where cooperation is already shielded and even incentivized, as is the case with corporations, affirmative steps may be needed to ensure that the public interest is being furthered.

The current moment is without precedent. Industrial policy is destined, and has already begun, to change. Although competition has its place, it cannot serve as the sole lynchpin for a just economy. Now more than ever, a revival of cooperation is needed.

Since the LabMD decision, in which the Eleventh Circuit Court of Appeals told the FTC that its orders were unconstitutionally vague, the FTC has been put on notice that it needs to reconsider how it develops and substantiates its claims in data security enforcement actions brought under Section 5. 

Thus, on January 6, the FTC announced on its blog that it will have “New and improved FTC data security orders: Better guidance for companies, better protection for consumers.” However, the changes the Commission highlights only get to a small part of what we have previously criticized when it comes to their “common law” of data security (see here and here). 

While the new orders do list more specific requirements to help explain what the FTC believes is a “comprehensive data security program”, there is still no legal analysis in either the orders or the complaints that would give companies fair notice of what the law requires. Furthermore, nothing about the underlying FTC process has changed, which means there is still enormous pressure for companies to settle rather than litigate the contours of what “reasonable” data security practices look like. Thus, despite the Commission’s optimism, the recent orders and complaints do little to nothing to remedy the problems that plague the Commission’s data security enforcement program.

The changes

In his blog post, the director of the Bureau of Consumer Protection at the FTC describes how new orders in data security enforcement actions are more specific, with one of the main goals being more guidance to businesses trying to follow the law.

Since the early 2000s, our data security orders had contained fairly standard language. For example, these orders typically required a company to implement a comprehensive information security program subject to a biennial outside assessment. As part of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century, we held a hearing in December 2018 that specifically considered how we might improve our data security orders. We were also mindful of the 11th Circuit’s 2018 LabMD decision, which struck down an FTC data security order as unenforceably vague.

Based on this learning, in 2019 the FTC made significant improvements to its data security orders. These improvements are reflected in seven orders announced this year against an array of diverse companies: ClixSense (pay-to-click survey company), i-Dressup (online games for kids), DealerBuilt (car dealer software provider), D-Link (Internet-connected routers and cameras), Equifax (credit bureau), Retina-X (monitoring app), and Infotrax (service provider for multilevel marketers)…

[T]he orders are more specific. They continue to require that the company implement a comprehensive, process-based data security program, and they require the company to implement specific safeguards to address the problems alleged in the complaint. Examples have included yearly employee training, access controls, monitoring systems for data security incidents, patch management systems, and encryption. These requirements not only make the FTC’s expectations clearer to companies, but also improve order enforceability.

Why the FTC’s data security enforcement regime fails to provide fair notice or develop law (and is not like the common law)

While these changes are long overdue, it is just one step in the direction of a much-needed process reform at the FTC in how it prosecutes cases with its unfairness authority, particularly in the realm of data security. It’s helpful to understand exactly why the historical failures of the FTC process are problematic in order to understand why the changes it is undertaking are insufficient.

For instance, Geoffrey Manne and I previously highlighted  the various ways the FTC’s data security consent order regime fails in comparison with the common law: 

In Lord Mansfield’s characterization, “the common law ‘does not consist of particular cases, but of general principles, which are illustrated and explained by those cases.’” Further, the common law is evolutionary in nature, with the outcome of each particular case depending substantially on the precedent laid down in previous cases. The common law thus emerges through the accretion of marginal glosses on general rules, dictated by new circumstances. 

The common law arguably leads to legal rules with at least two substantial benefits—efficiency and predictability or certainty. The repeated adjudication of inefficient or otherwise suboptimal rules results in a system that generally offers marginal improvements to the law. The incentives of parties bringing cases generally means “hard cases,” and thus judicial decisions that have to define both what facts and circumstances violate the law and what facts and circumstances don’t. Thus, a benefit of a “real” common law evolution is that it produces a body of law and analysis that actors can use to determine what conduct they can undertake without risk of liability and what they cannot. 

In the abstract, of course, the FTC’s data security process is neither evolutionary in nature nor does it produce such well-defined rules. Rather, it is a succession of wholly independent cases, without any precedent, narrow in scope, and binding only on the parties to each particular case. Moreover it is generally devoid of analysis of the causal link between conduct and liability and entirely devoid of analysis of which facts do not lead to liability. Like all regulation it tends to be static; the FTC is, after all, an enforcement agency, charged with enforcing the strictures of specific and little-changing pieces of legislation and regulation. For better or worse, much of the FTC’s data security adjudication adheres unerringly to the terms of the regulations it enforces with vanishingly little in the way of gloss or evolution. As such (and, we believe, for worse), the FTC’s process in data security cases tends to reject the ever-evolving “local knowledge” of individual actors and substitutes instead the inherently limited legislative and regulatory pronouncements of the past. 

By contrast, real common law, as a result of its case-by-case, bottom-up process, adapts to changing attributes of society over time, largely absent the knowledge and rent-seeking problems of legislatures or administrative agencies. The mechanism of constant litigation of inefficient rules allows the common law to retain a generally efficient character unmatched by legislation, regulation, or even administrative enforcement. 

Because the common law process depends on the issues selected for litigation and the effects of the decisions resulting from that litigation, both the process by which disputes come to the decision-makers’ attention, as well as (to a lesser extent, because errors will be corrected over time) the incentives and ability of the decision-maker to render welfare-enhancing decisions, determine the value of the common law process. These are decidedly problematic at the FTC.

In our analysis, we found the FTC’s process to be wanting compared to the institution of the common law. The incentives of the administrative complaint process put a relatively larger pressure on companies to settle data security actions brought by the FTC compared to private litigants. This is because the FTC can use its investigatory powers as a public enforcer to bypass the normal discovery process to which private litigants are subject, and over which independent judges have authority. 

In a private court action, plaintiffs can’t engage in discovery unless their complaint survives a motion to dismiss from the defendant. Discovery costs remain a major driver of settlements, so this important judicial review is necessary to make sure there is actually a harm present before putting those costs on defendants. 

Furthermore, the FTC can also bring cases in a Part III adjudicatory process which starts in front of an administrative law judge (ALJ) but is then appealable to the FTC itself. Former Commissioner Joshua Wright noted in 2013 that “in the past nearly twenty years… after the administrative decision was appealed to the Commission, the Commission ruled in favor of FTC staff. In other words, in 100 percent of cases where the ALJ ruled in favor of the FTC, the Commission affirmed; and in 100 percent of the cases in which the ALJ ruled against the FTC, the Commission reversed.” In other words, the FTC nearly always rules in favor of itself on appeal if the ALJ finds there is no case, as it did in LabMD. The combination of investigation costs before any complaint at all and the high likelihood of losing through several stages of litigation makes the intelligent business decision to simply agree to a consent decree.

The results of this asymmetrical process show the FTC has not really been building a common law. In all but two cases (Wyndham and LabMD), the companies who have been targeted for investigation by the FTC on data security enforcement have settled. We also noted how the FTC’s data security orders tended to be nearly identical from case-to-case, reflecting the standards of the FTC’s Safeguards Rule. Since the orders were giving nearly identical—and as LabMD found, vague—remedies in each case, it cannot be said there was a common law developing over time.  

What LabMD addressed and what it didn’t

In its decision, the Eleventh Circuit sidestepped fundamental substantive problems with the FTC’s data security practice (which we have made in both our scholarship and LabMD amicus brief) about notice or substantial injury. Instead, the court decided to assume the FTC had proven its case and focused exclusively on the remedy. 

We will assume arguendo that the Commission is correct and that LabMD’s negligent failure to design and maintain a reasonable data-security program invaded consumers’ right of privacy and thus constituted an unfair act or practice.

What the Eleventh Circuit did address, though, was that the remedies the FTC had been routinely applying to businesses through its data enforcement actions lacked the necessary specificity in order to be enforceable through injunctions or cease and desist orders.

In the case at hand, the cease and desist order contains no prohibitions. It does not instruct LabMD to stop committing a specific act or practice. Rather, it commands LabMD to overhaul and replace its data-security program to meet an indeterminable standard of reasonableness. This command is unenforceable. Its unenforceability is made clear if we imagine what would take place if the Commission sought the order’s enforcement…

The Commission moves the district court for an order requiring LabMD to show cause why it should not be held in contempt for violating the following injunctive provision:

[T]he respondent shall … establish and implement, and thereafter maintain, a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about consumers…. Such program… shall contain administrative, technical, and physical safeguards appropriate to respondent’s size and complexity, the nature and scope of respondent’s activities, and the sensitivity of the personal information collected from or about consumers….

The Commission’s motion alleges that LabMD’s program failed to implement “x” and is therefore not “reasonably designed.” The court concludes that the Commission’s alleged failure is within the provision’s language and orders LabMD to show cause why it should not be held in contempt.

At the show cause hearing, LabMD calls an expert who testifies that the data-security program LabMD implemented complies with the injunctive provision at issue. The expert testifies that “x” is not a necessary component of a reasonably designed data-security program. The Commission, in response, calls an expert who disagrees. At this point, the district court undertakes to determine which of the two equally qualified experts correctly read the injunctive provision. Nothing in the provision, however, indicates which expert is correct. The provision contains no mention of “x” and is devoid of any meaningful standard informing the court of what constitutes a “reasonably designed” data-security program. The court therefore has no choice but to conclude that the Commission has not proven — and indeed cannot prove — LabMD’s alleged violation by clear and convincing evidence.

In other words, the Eleventh Circuit found that an order requiring a reasonable data security program is not specific enough to make it enforceable. This leaves questions as to whether the FTC’s requirement of a “reasonable data security program” is specific enough to survive a motion to dismiss and/or a fair notice challenge going forward.

Under the Federal Rules of Civil Procedure, a plaintiff must provide “a short and plain statement . . . showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), including “enough facts to state a claim . . . that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In FTC v. D-Link, for instance, the Northern District of California dismissed the unfairness claims because the FTC did not sufficiently plead injury. 

[T]hey make out a mere possibility of injury at best. The FTC does not identify a single incident where a consumer’s financial, medical or other sensitive personal information has been accessed, exposed or misused in any way, or whose IP camera has been compromised by unauthorized parties, or who has suffered any harm or even simple annoyance and inconvenience from the alleged security flaws in the DLS devices. The absence of any concrete facts makes it just as possible that DLS’s devices are not likely to substantially harm consumers, and the FTC cannot rely on wholly conclusory allegations about potential injury to tilt the balance in its favor. 

The fair notice question wasn’t reached in LabMD, though it was in FTC v. Wyndham. But the Third Circuit did not analyze the FTC’s data security regime under the “ascertainable certainty” standard applied to agency interpretation of a statute.

Wyndham’s position is unmistakable: the FTC has not yet declared that cybersecurity practices can be unfair; there is no relevant FTC rule, adjudication or document that merits deference; and the FTC is asking the federal courts to interpret § 45(a) in the first instance to decide whether it prohibits the alleged conduct here. The implication of this position is similarly clear: if the federal courts are to decide whether Wyndham’s conduct was unfair in the first instance under the statute without deferring to any FTC interpretation, then this case involves ordinary judicial interpretation of a civil statute, and the ascertainable certainty standard does not apply. The relevant question is not whether Wyndham had fair notice of the FTC’s interpretation of the statute, but whether Wyndham had fair notice of what the statute itself requires.

In other words, Wyndham boxed itself into a corner arguing that they did not have fair notice that the FTC could bring a data security enforcement action against the under Section 5 unfairness. LabMD, on the other hand, argued they did not have fair notice as to how the FTC would enforce its data security standards. Cf. ICLE-Techfreedom Amicus Brief at 19. The Third Circuit even suggested that under an “ascertainable certainty” standard, the FTC failed to provide fair notice: “we agree with Wyndham that the guidebook could not, on its own, provide ‘ascertainable certainty’ of the FTC’s interpretation of what specific cybersecurity practices fail § 45(n).” Wyndham, 799 F.3d at 256 n.21

Most importantly, the Eleventh Circuit did not actually get to the issue of whether LabMD actually violated the law under the factual record developed in the case. This means there is still no caselaw (aside from the ALJ decision in this case) which would allow a company to learn what is and what is not reasonable data security, or what counts as a substantial injury for the purposes of Section 5 unfairness in data security cases. 

How FTC’s changes fundamentally fail to address its failures of process

The FTC’s new approach to its orders is billed as directly responsive to what the Eleventh Circuit did reach in the LabMD decision, but it leaves so much of what makes the process insufficient in place.

First, it is notable that while the FTC highlights changes to its orders, there is still a lack of legal analysis in the orders that would allow a company to accurately predict whether its data security practices are enough under the law. A listing of what specific companies under consent orders are required to do is helpful. But these consent decrees do not require companies to admit liability or contain anything close to the reasoning that accompanies court opinions or normal agency guidance on complying with the law. 

For instance, the general formulation in these 2019 orders is that the company must “establish, implement, and maintain a comprehensive information/software security program that is designed to protect the security, confidentiality, and integrity of such personal information. To satisfy this requirement, Respondent/Defendant must, at a minimum…” (emphasis added), followed by a list of pretty similar requirements with variation depending on the business. Even if a company does all of the listed requirements but a breach occurs, the FTC is not obligated to find the data security program was legally sufficient. There is no safe harbor or presumptive reasonableness that attaches even for the business subject to the order, nonetheless companies looking for guidance. 

While the FTC does now require more specific things, like “yearly employee training, access controls, monitoring systems for data security incidents, patch management systems, and encryption,” there is still no analysis on how to meet the standard of reasonableness the FTC relies upon. In other words, it is not clear that this new approach to orders does anything to increase fair notice to companies as to what the FTC requires under Section 5 unfairness.

Second, nothing about the underlying process has really changed. The FTC can still investigate and prosecute cases through administrative law courts with itself as initial court of appeal. This makes the FTC the police, prosecutor, and judge in its own case. In the case of LabMD, who actually won after many appeals, this process ended in bankruptcy. It is no surprise that since the LabMD decision, each of the FTC’s data security enforcement cases have been settled with consent orders, just as they were before the Eleventh Circuit opinion. 

Unfortunately, if the FTC really wants to evolve its data security process like the common law, it needs to engage in an actual common law process. Without caselaw on the facts necessary to establish substantial injury, “unreasonable” data security practices, and causation, there will continue to be more questions than answers about what the law requires. And without changes to the process, the FTC will continue to be able to strong-arm companies into consent decrees.

In our first post, we discussed the weaknesses of an important theoretical underpinning of efforts to expand vertical merger enforcement (including, possibly, the proposed guidelines): the contract/merger equivalency assumption.

In this post we discuss the implications of that assumption and some of the errors it leads to — including some incorporated into the proposed guidelines.

There is no theoretical or empirical justification for more vertical enforcement

Tim Brennan makes a fantastic and regularly overlooked point in his post: If it’s true, as many claim (see, e.g., Steve Salop), that firms can generally realize vertical efficiencies by contracting instead of merging, then it’s also true that they can realize anticompetitive outcomes the same way. While efficiencies have to be merger-specific in order to be relevant to the analysis, so too do harms. But where the assumption is that the outcomes of integration can generally be achieved by the “less-restrictive” means of contracting, that would apply as well to any potential harms, thus negating the transaction-specificity required for enforcement. As Dennis Carlton notes:

There is a symmetry between an evaluation of the harms and benefits of vertical integration. Each must be merger-specific to matter in an evaluation of the merger’s effects…. If transaction costs are low, then vertical integration creates neither benefits nor harms, since everything can be achieved by contract. If transaction costs exist to prevent the achievement of a benefit but not a harm (or vice-versa), then that must be accounted for in a calculation of the overall effect of a vertical merger. (Dennis Carlton, Transaction Costs and Competition Policy)

Of course, this also means that those (like us) who believe that it is not so easy to accomplish by contract what may be accomplished by merger must also consider the possibility that a proposed merger may be anticompetitive because it overcomes an impediment to achieving anticompetitive goals via contract.

There’s one important caveat, though: The potential harms that could arise from a vertical merger are the same as those that would be cognizable under Section 2 of the Sherman Act. Indeed, for a vertical merger to cause harm, it must be expected to result in conduct that would otherwise be illegal under Section 2. This means there is always the possibility of a second bite at the apple when it comes to thwarting anticompetitive conduct. 

The same cannot be said of procompetitive conduct that can arise only through merger if a merger is erroneously prohibited before it even happens

Interestingly, Salop himself — the foremost advocate today for enhanced vertical merger enforcement — recognizes the issue raised by Brennan: 

Exclusionary harms and certain efficiency benefits also might be achieved with vertical contracts and agreements without the need for a vertical merger…. It [] might be argued that the absence of premerger exclusionary contracts implies that the merging firms lack the incentive to engage in conduct that would lead to harmful exclusionary effects. But anticompetitive vertical contracts may face the same types of impediments as procompetitive ones, and may also be deterred by potential Section 1 enforcement. Neither of these arguments thus justify a more or less intrusive vertical merger policy generally. Rather, they are factors that should be considered in analyzing individual mergers. (Salop & Culley, Potential Competitive Effects of Vertical Mergers)

In the same article, however, Salop also points to the reasons why it should be considered insufficient to leave enforcement to Sections 1 and 2, instead of addressing them at their incipiency under Clayton Section 7:

While relying solely on post-merger enforcement might have appealing simplicity, it obscures several key facts that favor immediate enforcement under Section 7.

  • The benefit of HSR review is to prevent the delays and remedial issues inherent in after-the-fact enforcement….
  • There may be severe problems in remedying the concern….
  • Section 1 and Section 2 legal standards are more permissive than Section 7 standards….
  • The agencies might well argue that anticompetitive post-merger conduct was caused by the merger agreement, so that it would be covered by Section 7….

All in all, failure to address these kinds of issues in the context of merger review could lead to significant consumer harm and underdeterrence.

The points are (mostly) well-taken. But they also essentially amount to a preference for more and tougher enforcement against vertical restraints than the judicial interpretations of Sections 1 & 2 currently countenance — a preference, in other words, for the use of Section 7 to bolster enforcement against vertical restraints of any sort (whether contractual or structural).

The problem with that, as others have pointed out in this symposium (see, e.g., Nuechterlein; Werden & Froeb; Wright, et al.), is that there’s simply no empirical basis for adopting a tougher stance against vertical restraints in the first place. Over and over again the empirical research shows that vertical restraints and vertical mergers are unlikely to cause anticompetitive harm: 

In reviewing this literature, two features immediately stand out: First, there is a paucity of support for the proposition that vertical restraints/vertical integration are likely to harm consumers. . . . Second, a far greater number of studies found that the use of vertical restraints in the particular context studied improved welfare unambiguously. (Cooper, et al, Vertical Restrictions and Antitrust Policy: What About the Evidence?)

[W]e did not have a particular conclusion in mind when we began to collect the evidence, and we… are therefore somewhat surprised at what the weight of the evidence is telling us. It says that, under most circumstances, profit-maximizing, vertical-integration decisions are efficient, not just from the firms’ but also from the consumers’ points of view…. We therefore conclude that, faced with a vertical arrangement, the burden of evidence should be placed on competition authorities to demonstrate that that arrangement is harmful before the practice is attacked. (Francine Lafontaine & Margaret Slade, Vertical Integration and Firm Boundaries: The Evidence)

[Table 1 in this paper] indicates that voluntarily adopted restraints are associated with lower costs, greater consumption, higher stock returns, and better chances of survival. (Daniel O’Brien, The Antitrust Treatment of Vertical Restraint: Beyond the Beyond the Possibility Theorems)

In sum, these papers from 2009-2018 continue to support the conclusions from Lafontaine & Slade (2007) and Cooper et al. (2005) that consumers mostly benefit from vertical integration. While vertical integration can certainly foreclose rivals in theory, there is only limited empirical evidence supporting that finding in real markets. (GAI Comment on Vertical Mergers)

To the extent that the proposed guidelines countenance heightened enforcement relative to the status quo, they fall prey to the same defect. And while it is unclear from the fairly terse guidelines whether this is animating them, the removal of language present in the 1984 Non-Horizontal Merger Guidelines acknowledging the relative lack of harm from vertical mergers (“[a]lthough non-horizontal mergers are less likely than horizontal mergers to create competitive problems…”) is concerning.  

The shortcomings of orthodox economics and static formal analysis

There is also a further reason to think that vertical merger enforcement may be more likely to thwart procompetitive than anticompetitive arrangements relative to the status quo ante (i.e., where arrangements among vertical firms are by contract): Our lack of knowledge about the effects of market structure and firm organization on innovation and dynamic competition, and the relative hostility to nonstandard contracting, including vertical integration:

[T]he literature addressing how market structure affects innovation (and vice versa) in the end reveals an ambiguous relationship in which factors unrelated to competition play an important role. (Katz & Shelanski, Mergers and Innovation)

The fixation on the equivalency of the form of vertical integration (i.e., merger versus contract) is likely to lead enforcers to focus on static price and cost effects, and miss the dynamic organizational and informational effects that lead to unexpected, increased innovation across and within firms. 

In the hands of Oliver Williamson, this means that understanding firms in the real world entails taking an organization theory approach, in contrast to the “orthodox” economic perspective:

The lens of contract approach to the study of economic organization is partly complementary but also partly rival to the orthodox [neoclassical economic] lens of choice. Specifically, whereas the latter focuses on simple market exchange, the lens of contract is predominantly concerned with the complex contracts. Among the major differences is that non‐standard and unfamiliar contractual practices and organizational structures that orthodoxy interprets as manifestations of monopoly are often perceived to serve economizing purposes under the lens of contract. A major reason for these and other differences is that orthodoxy is dismissive of organization theory whereas organization theory provides conceptual foundations for the lens of contract. (emphasis added)

We are more likely to miss it when mergers solve market inefficiencies, and more likely to see it when they impose static costs — even if the apparent costs actually represent a move from less efficient contractual arrangements to more efficient integration.

The competition that takes place in the real world and between various groups ultimately depends upon the institution of private contracts, many of which, including the firm itself, are nonstandard. Innovation includes the discovery of new organizational forms and the application of old forms to new contexts. Such contracts prevent or attenuate market failure, moving the market toward what economists would deem a more competitive result. Indeed, as Professor Coase pointed out, many markets deemed “perfectly competitive” are in fact the end result of complex contracts limiting rivalry between competitors. This contractual competition cannot produce perfect results — no human institution ever can. Nonetheless, the result is superior to that which would obtain in a (real) world without nonstandard contracting. These contracts do not depend upon the creation or enhancement of market power and thus do not produce the evils against which antitrust law is directed. (Alan Meese, Price Theory Competition & the Rule of Reason)

Or, as Oliver Williamson more succinctly puts it:

[There is a] rebuttable presumption that nonstandard forms of contracting have efficiency purposes. (Oliver Williamson, The Economic Institutions of Capitalism)

The pinched focus of the guidelines on narrow market definition misses the bigger picture of dynamic competition over time

The proposed guidelines (and the theories of harm undergirding them) focus upon indicia of market power that may not be accurate if assessed in more realistic markets or over more relevant timeframes, and, if applied too literally, may bias enforcement against mergers with dynamic-innovation benefits but static-competition costs.  

Similarly, the proposed guidelines’ enumeration of potential efficiencies doesn’t really begin to cover the categories implicated by the organization of enterprise around dynamic considerations

The proposed guidelines’ efficiencies section notes that:

Vertical mergers bring together assets used at different levels in the supply chain to make a final product. A single firm able to coordinate how these assets are used may be able to streamline production, inventory management, or distribution, or create innovative products in ways that would have been hard to achieve though arm’s length contracts. (emphasis added)

But it is not clear than any of these categories encompasses organizational decisions made to facilitate the coordination of production and commercialization when they are dependent upon intangible assets.

As Thomas Jorde and David Teece write:

For innovations to be commercialized, the economic system must somehow assemble all the relevant complementary assets and create a dynamically-efficient interactive system of learning and information exchange. The necessary complementary assets can conceivably be assembled by either administrative or market processes, as when the innovator simply licenses the technology to firms that already own or are willing to create the relevant assets. These organizational choices have received scant attention in the context of innovation. Indeed, the serial model relies on an implicit belief that arm’s-length contracts between unaffiliated firms in the vertical chain from research to customer will suffice to commercialize technology. In particular, there has been little consideration of how complex contractual arrangements among firms can assist commercialization — that is, translating R&D capability into profitable new products and processes….

* * *

But in reality, the market for know-how is riddled with imperfections. Simple unilateral contracts where technology is sold for cash are unlikely to be efficient. Complex bilateral and multilateral contracts, internal organization, or various hybrid structures are often required to shore up obvious market failures and create procompetitive efficiencies. (Jorde & Teece, Rule of Reason Analysis of Horizontal Arrangements: Agreements Designed to Advance Innovation and Commercialize Technology) (emphasis added)

When IP protection for a given set of valuable pieces of “know-how” is strong — easily defendable, unique patents, for example — firms can rely on property rights to efficiently contract with vertical buyers and sellers. But in cases where the valuable “know how” is less easily defended as IP — e.g. business process innovation, managerial experience, distributed knowledge, corporate culture, and the like — the ability to partially vertically integrate through contract becomes more difficult, if not impossible. 

Perhaps employing these assets is part of what is meant in the draft guidelines by “streamline.” But the very mention of innovation only in the technological context of product innovation is at least some indication that organizational innovation is not clearly contemplated.  

This is a significant lacuna. The impact of each organizational form on knowledge transfers creates a particularly strong division between integration and contract. As Enghin Atalay, Ali Hortaçsu & Chad Syverson point out:

That vertical integration is often about transfers of intangible inputs rather than physical ones may seem unusual at first glance. However, as observed by Arrow (1975) and Teece (1982), it is precisely in the transfer of nonphysical knowledge inputs that the market, with its associated contractual framework, is most likely to fail to be a viable substitute for the firm. Moreover, many theories of the firm, including the four “elemental” theories as identified by Gibbons (2005), do not explicitly invoke physical input transfers in their explanations for vertical integration. (Enghin Atalay, et al., Vertical Integration and Input Flows) (emphasis added)

There is a large economics and organization theory literature discussing how organizations are structured with respect to these sorts of intangible assets. And the upshot is that, while we start — not end, as some would have it — with the Coasian insight that firm boundaries are necessarily a function of production processes and not a hard limit, we quickly come to realize that it is emphatically not the case that integration-via-contract and integration-via-merger are always, or perhaps even often, viable substitutes.

Conclusion

The contract/merger equivalency assumption, coupled with a “least-restrictive alternative” logic that favors contract over merger, puts a thumb on the scale against vertical mergers. While the proposed guidelines as currently drafted do not necessarily portend the inflexible, formalistic application of this logic, they offer little to guide enforcers or courts away from the assumption in the important (and perhaps numerous) cases where it is unwarranted.   

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Geoffrey A. Manne (President & Founder, ICLE; Distinguished Fellow, Northwestern University Center on Law, Business, and Economics ); and Kristian Stout (Associate Director, ICLE).]

As many in the symposium have noted — and as was repeatedly noted during the FTC’s Hearings on Competition and Consumer Protection in the 21st Century — there is widespread dissatisfaction with the 1984 Non-Horizontal Merger Guidelines

Although it is doubtless correct that the 1984 guidelines don’t reflect the latest economic knowledge, it is by no means clear that this has actually been a problem — or that a new set of guidelines wouldn’t create even greater problems. Indeed, as others have noted in this symposium, there is a great deal of ambiguity in the proposed guidelines that could lead either to uncertainty as to how the agencies will exercise their discretion, or, more troublingly, could lead courts to take seriously speculative theories of harm

We can do little better in expressing our reservations that new guidelines are needed than did the current Chairman of the FTC, Joe Simons, writing on this very blog in a symposium on what became the 2010 Horizontal Merger Guidelines. In a post entitled, Revisions to the Merger Guidelines: Above All, Do No Harm, Simons writes:

My sense is that there is no need to revise the DOJ/FTC Horizontal Merger Guidelines, with one exception…. The current guidelines lay out the general framework quite well and any change in language relative to that framework are likely to create more confusion rather than less. Based on my own experience, the business community has had a good sense of how the agencies conduct merger analysis…. If, however, the current administration intends to materially change the way merger analysis is conducted at the agencies, then perhaps greater revision makes more sense. But even then, perhaps the best approach is to try out some of the contemplated changes (i.e. in actual investigations) and publicize them in speeches and the like before memorializing them in a document that is likely to have some substantial permanence to it.

Wise words. Unless, of course, “the current [FTC] intends to materially change the way [vertical] merger analysis is conducted.” But the draft guidelines don’t really appear to portend a substantial change, and in several ways they pretty accurately reflect agency practice.

What we want to draw attention to, however, is an implicit underpinning of the draft guidelines that we believe the agencies should clearly disavow (or at least explain more clearly the complexity surrounding): the extent and implications of the presumed functional equivalence of vertical integration by contract and by merger — the contract/merger equivalency assumption.   

Vertical mergers and their discontents

The contract/merger equivalency assumption has been gaining traction with antitrust scholars, but it is perhaps most clearly represented in some of Steve Salop’s work. Salop generally believes that vertical merger enforcement should be heightened. Among his criticisms of current enforcement is his contention that efficiencies that can be realized by merger can often also be achieved by contract. As he discussed during his keynote presentation at last year’s FTC hearing on vertical mergers:

And, finally, the key policy issue is the issue is not about whether or not there are efficiencies; the issue is whether the efficiencies are merger-specific. As I pointed out before, Coase stressed that you can get vertical integration by contract. Very often, you can achieve the vertical efficiencies if they occur, but with contracts rather than having to merge.

And later, in the discussion following his talk:

If there is vertical integration by contract… it meant you could get all the efficiencies from vertical integration with a contract. You did not actually need the vertical integration. 

Salop thus argues that because the existence of a “contract solution” to firm problems can often generate the same sorts of efficiencies as when firms opt to merge, enforcers and courts should generally adopt a presumption against vertical mergers relative to contracting:

Coase’s door swings both ways: Efficiencies often can be achieved by vertical contracts, without the potential anticompetitive harms from merger

In that vertical restraints are characterized as “just” vertical integration “by contract,” then claimed efficiencies in problematical mergers might be achieved with non-merger contracts that do not raise the same anticompetitive concerns. (emphasis in original)

(Salop isn’t alone in drawing such a conclusion, of course; Carl Shapiro, for example, has made a similar point (as have others)).

In our next post we explore the policy errors implicated by this contract/merger equivalency assumption. But here we want to consider whether it makes logical sense in the first place

The logic of vertical integration is not commutative 

It is true that, where contracts are observed, they are likely as (or more, actually)  efficient than merger. But, by the same token, it is also true that where mergers are observed they are likely more efficient than contracts. Indeed, the entire reason for integration is efficiency relative to what could be done by contract — this is the essence of the so-called “make-or-buy” decision. 

For example, a firm that decides to buy its own warehouse has determined that doing so is more efficient than renting warehouse space. Some of these efficiencies can be measured and quantified (e.g., carrying costs of ownership vs. the cost of rent), but many efficiencies cannot be easily measured or quantified (e.g., layout of the facility or site security). Under the contract/merger equivalency assumption, the benefits of owning a warehouse can be achieved “very often” by renting warehouse space. But the fact that many firms using warehouses own some space and rent some space indicates that the make-or-buy decision is often unique to each firm’s idiosyncratic situation. Moreover, the distinctions driving those differences will not always be readily apparent, and whether contracting or integrating is preferable in any given situation may not be inferred from the existence of one or the other elsewhere in the market — or even in the same firm!

There is no reason to presume in any given situation that the outcome from contracting would be the same as from merging, even where both are notionally feasible. The two are, quite simply, different bargaining environments, each with a different risk and cost allocation; accounting treatment; effect on employees, customers, and investors; tax consequence, etc. Even if the parties accomplished nominally “identical” outcomes, they would not, in fact, be identical.

Meanwhile, what if the reason for failure to contract, or the reason to prefer merger, has nothing to do with efficiency? What if there were no anticompetitive aim but there were a tax advantage? What if one of the parties just wanted a larger firm in order to satisfy the CEO’s ego? That these are not cognizable efficiencies under antitrust law is clear. But the adoption of a presumption of equivalence between contract and merger would — ironically — entail their incorporation into antitrust law just the same — by virtue of their effective prohibition under antitrust law

In other words, if the assumption is that contract and merger are equally efficient unless proven otherwise, but the law adopts a suspicion (or, even worse, a presumption) that vertical mergers are anticompetitive which can be rebutted only with highly burdensome evidence of net efficiency gain, this effectively deputizes antitrust law to enforce a preconceived notion of “merger appropriateness” that does not necessarily turn on efficiencies. There may (or may not) be sensible policy reasons for adopting such a stance, but they aren’t antitrust reasons.

More fundamentally, however, while there are surely some situations in which contractual restraints might be able to achieve similar organizational and efficiency gains as a merger, the practical realities of achieving not just greater efficiency, but a whole host of non-efficiency-related, yet nonetheless valid, goals, are rarely equivalent between the two

It may be that the parties don’t know what they don’t know to such an extent that a contract would be too costly because it would be too incomplete, for example. But incomplete contracts and ambiguous control and ownership rights aren’t (as much of) an issue on an ongoing basis after a merger. 

As noted, there is no basis for assuming that the structure of a merger and a contract would be identical. In the same way, there is no basis for assuming that the knowledge transfer that would result from a merger would be the same as that which would result from a contract — and in ways that the parties could even specify or reliably calculate in advance. Knowing that the prospect for knowledge “synergies” would be higher with a merger than a contract might be sufficient to induce the merger outcome. But asked to provide evidence that the parties could not engage in the same conduct via contract, the parties would be unable to do so. The consequence, then, would be the loss of potential gains from closer integration.

At the same time, the cavalier assumption that parties would be able — legally — to enter into an analogous contract in lieu of a merger is problematic, given that it would likely be precisely the form of contract (foreclosing downstream or upstream access) that is alleged to create problems with the merger in the first place.

At the FTC hearings last year, Francine LaFontaine highlighted this exact concern

I want to reemphasize that there are also rules against vertical restraints in antitrust laws, and so to say that the firms could achieve the mergers outcome by using vertical restraints is kind of putting them in a circular motion where we are telling them you cannot merge because you could do it by contract, and then we say, but these contract terms are not acceptable.

Indeed, legal risk is one of the reasons why a merger might be preferable to a contract, and because the relevant markets here are oligopoly markets, the possibility of impermissible vertical restraints between large firms with significant market share is quite real.

More important, the assumptions underlying the contention that contracts and mergers are functionally equivalent legal devices fails to appreciate the importance of varied institutional environments. Consider that one reason some takeovers are hostile is because incumbent managers don’t want to merge, and often believe that they are running a company as well as it can be run — that a change of corporate control would not improve efficiency. The same presumptions may also underlie refusals to contract and, even more likely, may explain why, to the other firm, a contract would be ineffective.

But, while there is no way to contract without bilateral agreement, there is a corporate control mechanism to force a takeover. In this institutional environment a merger may be easier to realize than a contract (and that applies even to a consensual merger, of course, given the hostile outside option). In this case, again, the assumption that contract should be the relevant baseline and the preferred mechanism for coordination is misplaced — even if other firms in the industry are successfully accomplishing the same thing via contract, and even if a contract would be more “efficient” in the abstract.

Conclusion

Properly understood, the choice of whether to contract or merge derives from a host of complicated factors, many of which are difficult to observe and/or quantify. The contract/merger equivalency assumption — and the species of “least-restrictive alternative” reasoning that would demand onerous efficiency arguments to permit a merger when a contract was notionally possible — too readily glosses over these complications and unjustifiably embraces a relative hostility to vertical mergers at odds with both theory and evidence

Rather, as has long been broadly recognized, there can be no legally relevant presumption drawn against a company when it chooses one method of vertical integration over another in the general case. The agencies should clarify in the draft guidelines that the mere possibility of integration via contract or the inability of merging parties to rigorously describe and quantify efficiencies does not condemn a proposed merger.

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Lawrence J. White (Robert Kavesh Professor of Economics, New York University; former Chief Economist, DOJ Antitrust Division).]

The DOJ/FTC Draft Vertical Merger Guidelines establish a “safe harbor” of a 20% market share for each of the merging parties. But the issue of defining the relevant “market” to which the 20% would apply is not well addressed.

Although reference is made to the market definition paradigm that is offered by the DOJ’s and FTC’s Horizontal Merger Guidelines (“HMGs”), what is neglected is the following: Under the “unilateral effects” theory of competitive harm of the HMGs, the horizontal merger of two firms that sell differentiated products that are imperfect substitutes could lead to significant price increases if the second-choice product for a significant fraction of each of the merging firms’ customers is sold by the partner firm. Such unilateral-effects instances are revealed by examining detailed sales and substitution data with respect to the customers of only the two merging firms.

In such instances, the true “relevant market” is simply the products that are sold by the two firms, and the merger is effectively a “2-to-1” merger. Under these circumstances, any apparently broader market (perhaps based on physical or functional similarities of products) is misleading, and the “market” shares of the merging parties that are based on that broader market are under-representations of the potential for their post-merger exercise of market power.

With a vertical merger, the potential for similar unilateral effects* would have to be captured by examining the detailed sales and substitution patterns of each of the merging firms with all of their significant horizontal competitors. This will require a substantial, data-intensive effort. And, of course, if this effort is not undertaken and an erroneously broader market is designated, the 20% “market” share threshold will understate the potential for competitive harm from a proposed vertical merger.

* With a vertical merger, such “unilateral effects” could arise post-merger in two ways: (a) The downstream partner could maintain a higher price, since some of the lost profits from some of the lost sales could be recaptured by the upstream partner’s profits on the sales of components to the downstream rivals (which gain some of the lost sales); and (b) the upstream partner could maintain a higher price to the downstream rivals, since some of the latter firms’ customers (and the concomitant profits) would be captured by the downstream partner.

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Jan Rybnicek (Counsel at Freshfields Bruckhaus Deringer US LLP in Washington, D.C. and Senior Fellow and Adjunct Professor at the Global Antitrust Institute at the Antonin Scalia Law School at George Mason University).]

In an area where it may seem that agreement is rare, there is near universal agreement on the benefits of withdrawing the DOJ’s 1984 Non-Horizontal Merger Guidelines. The 1984 Guidelines do not reflect current agency thinking on vertical mergers and are not relied upon by businesses or practitioners to anticipate how the agencies may review a vertical transaction. The more difficult question is whether the agencies should now replace the 1984 Guidelines and, if so, what the modern guidelines should say.

There are several important reasons that counsel against issuing new vertical merger guidelines (VMGs). Most significantly, we likely are better off without new VMGs because they invariably will (1) send the wrong message to agency staff about the relative importance of vertical merger enforcement compared to other agency priorities, (2) create new sufficient conditions that tend to trigger wasteful investigations and erroneous enforcement actions, and (3) add very little, if anything, to our understanding of when the agencies will or will not pursue an in-depth investigation or enforcement action of a vertical merger.

Unfortunately, these problems are magnified rather than mitigated by the draft VMGs. But it is unlikely at this point that the agencies will hit the brakes and not issue new VMGs. The agencies therefore should make several key changes that would help prevent the final VMGs from causing more harm than good.

What is the Purpose of Agency Guidelines? 

Before we can have a meaningful conversation about whether the draft VMGs are good or bad for the world, or how they can be improved to ensure they contribute positively to antitrust law, it is important to identify, and have a shared understanding about, the purpose of guidelines and their potential benefits.

In general, I am supportive of guidelines. In fact, I helped urge the FTC to issue its 2015 Policy Statement articulating the agency’s enforcement principles under its Section 5 Unfair Methods of Competition authority. As I have written before, guidelines can be useful if they accomplish two important goals: (1) provide insight and transparency to businesses and practitioners about the agencies’ analytical approach to an issue and (2) offer agency staff direction as to agency priorities while cabining the agencies’ broad discretion by tethering investigational or enforcement decisions to those guidelines. An additional benefit may be that the guidelines also could prove useful to courts interpreting or applying the antitrust laws.

Transparency is important for the obvious reason that it allows the business community and practitioners to know how the agencies will apply the antitrust laws and thereby allows them to evaluate if a specific merger or business arrangement is likely to receive scrutiny. But guidelines are not only consumed by the public. They also are used by agency staff. As a result, guidelines invariably influence how staff approaches a matter, including whether to open an investigation, how in-depth that investigation is, and whether to recommend an enforcement action. Lastly, for guidelines to be meaningful, they also must accurately reflect agency practice, which requires the agencies’ analysis to be tethered to an analytical framework.

As discussed below, there are many reasons to doubt that the draft VMGs can deliver on these goals.

Draft VMGs Will Lead to Bad Enforcement Policy While Providing Little Benefit

 A chief concern with VMGs is that they will inadvertently usher in a new enforcement regime that treats horizontal and vertical mergers as co-equal enforcement priorities despite the mountain of evidence, not to mention simple logic, that mergers among competitors are a significantly greater threat to competition than are vertical mergers. The draft VMGs exacerbate rather than mitigate this risk by creating a false equivalence between vertical and horizontal merger enforcement and by establishing new minimum conditions that are likely to lead the agencies to pursue wasteful investigations of vertical transactions. And the draft VMGs do all this without meaningfully advancing our understanding of the conditions under which the agencies are likely to pursue investigations and enforcement against vertical mergers.

1. No Recognition of the Differences Between Horizontal and Vertical Mergers

One striking feature of the draft VMGs is that they fail to contextualize vertical mergers in the broader antitrust landscape. As a result, it is easy to walk away from the draft VMGs with the impression that vertical mergers are as likely to lead to anticompetitive harm as are horizontal mergers. That is a position not supported by the economic evidence or logic. It is of course true that vertical mergers can result in competitive harm; that is not a seriously contested point. But it is important to acknowledge and provide background for why that harm is significantly less likely than in horizontal cases. That difference should inform agency enforcement priorities. Potentially due to this the lack of framing, the draft VMGs tend to speak more about when the agencies may identify competitive harm rather than when they will not.

The draft VMGs would benefit greatly from a more comprehensive approach to understanding vertical merger transactions. The agencies should add language explaining that, whereas a consensus exists that eliminating a direct competitor always tends to increase the risk of unilateral effects (although often trivially), there is no such consensus that harm will result from the combination of complementary assets. In fact, the current evidence shows such vertical transactions tend to be procompetitive. Absent such language, the VMGs will over time misguidedly focus more agency resources into investigating vertical mergers where there is unlikely to be harm (with inevitably more enforcement errors) and less time on more important priorities, such as pursuing enforcement of anticompetitive horizontal transactions.

2. The 20% Safe Harbor Provides No Harbor and Will Become a Sufficient Condition

The draft VMGs attempt to provide businesses with guidance about the types of transactions the agencies will not investigate by articulating a market share safe harbor. But that safe harbor does not (1) appear to be grounded in any evidence, (2) is surprisingly low in comparison to the EU vertical merger guidelines, and (3) is likely to become a sufficient condition to trigger an in-depth investigation or enforcement. 

The draft VMGs state:

The 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%, and the related product is used in less than 20% of the relevant market.

But in the very next sentence the draft VMGs render the safe harbor virtually meaningless, stating:

In some circumstance, mergers with shares below the threshold can give rise to competitive concerns.

This caveat comes despite the fact that the 20% threshold is low compared to other jurisdictions. Indeed, the EU’s guidelines create a 30% safe harbor. Nor is it clear what the basis is for the 20% threshold, either in economics or law. While it is important for the agencies to remain flexible, too much flexibility will render the draft VMGs meaningless. The draft VMGs should be less equivocal about the types of mergers that will not receive significant scrutiny and are unlikely to be the subject of enforcement action.

What may be most troubling about the market share safe harbor is the likelihood that it will establish general enforcement norms that did not previously exist. It is likely that agency staff will soon interpret (despite language stating otherwise) the 20% market share as the minimum necessary condition to open an in-depth investigation and to pursue an enforcement action. We have seen other guidelines’ tools have similar effects on agency analysis before (see, GUPPIs). This risk is only exacerbated where the safe harbor is not a true safe harbor that provides businesses with clarity on enforcement priorities.

3. Requirements for Proving EDM and Efficiencies Fails to Recognize Vertical Merger Context

The draft VMGs minimize the significant role of EDM and efficiencies in vertical mergers. The agencies frequently take a skeptical approach to efficiencies in the context of horizontal mergers and it is well-known that the hurdle to substantiate efficiencies is difficult, if not impossible, to meet. The draft VMGs oddly continue this skeptical approach by specifically referencing the standards discussed in the horizontal merger guidelines for efficiencies when discussing EDM and vertical merger efficiencies. The draft VMGs do not recognize that the combination of complementary products is inherently more likely to generate efficiencies than in horizontal mergers between competitors. The draft VMGs also oddly discuss EDM and efficiencies in separate sections and spend a trivial amount of time on what is the core motivating feature of vertical mergers. Even the discussion of EDM is as much about where there may be exceptions to EDM as it is about making clear the uncontroversial view that EDM is frequent in vertical transactions. Without acknowledging the inherent nature of EDM and efficiencies more generally, the final VMGs will send the wrong message that vertical merger enforcement should be on par with horizontal merger enforcement.

4. No New Insights into How Agencies Will Assess Vertical Mergers

Some might argue that the costs associated with the draft VMGs nevertheless are tolerable because the guidelines offer significant benefits that far outweigh their costs. But that is not the case here. The draft VMGs provide no new information about how the agencies will review vertical merger transactions and under what circumstances they are likely to seek enforcement actions. And that is because it is a difficult if not impossible task to identify any such general guiding principles. Indeed, unlike in the context of horizontal transactions where an increase in market power informs our thinking about the likely competitive effects, greater market power in the context of a vertical transaction that combines complements creates downward pricing pressure that often will dominate any potential competitive harm.

The draft VMGs do what they can, though, which is to describe in general terms several theories of harm. But the benefits from that exercise are modest and do not outweigh the significant risks discussed above. The theories described are neither novel or unknown to the public today. Nor do the draft VMGs explain any significant new thinking on vertical mergers, likely because there has been none that can provide insight into general enforcement principles. The draft VMGs also do not clarify changes to statutory text (because it has not changed) or otherwise clarify judicial rulings or past enforcement actions. As a result, the draft VMGs do not offer sufficient benefits that would outweigh their substantial cost.

Conclusion

Despite these concerns, it is worth acknowledging the work the FTC and DOJ have put into preparing the draft VMGs. It is no small task to articulate a unified position between the two agencies on an issue such as vertical merger enforcement where so many have such strong views. To the agencies’ credit, the VMGs are restrained in not including novel or more adventurous theories of harm. I anticipate the DOJ and FTC will engage with commentators and take the feedback seriously as they work to improve the final VMGs.

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Scott Sher (Partner, Wilson Sonsini Goodrich & Rosati) and Matthew McDonald (Associate, Wilson Sonsini Goodrich & Rosati).]

On January 10, 2020, the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (collectively, “the Agencies”) released their joint draft guidelines outlining their “principal analytical techniques, practices and enforcement policy” with respect to vertical mergers (“Draft Guidelines”). While the Draft Guidelines describe and formalize the Agencies’ existing approaches when investigating vertical mergers, they leave several policy questions unanswered. In particular, the Draft Guidelines do not address how the Agencies might approach the issue of acquisition of potential or nascent competitors through vertical mergers. As many technology mergers are motivated by the desire to enter new industries or add new tools or features to an existing platform (i.e., the Buy-Versus-Build dilemma), the omission leaves a significant hole in the Agencies’ enforcement policy agenda, and leaves the tech industry, in particular, without adequate guidance as to how the Agencies may address these issues.

This is notable, given that the Horizontal Merger Guidelines explicitly address potential competition theories of harm (e.g., at § 1 (referencing mergers and acquisitions “involving actual or potential competitors”); § 2 (“The Agencies consider whether the merging firms have been, or likely will become absent the merger, substantial head-to-head competitors.”). Indeed, the Agencies have recently challenged several proposed horizontal mergers based on nascent competition theories of harm. 

Further, there has been much debate regarding whether increased antitrust scrutiny of vertical acquisitions of nascent competitors, particularly in technology markets, is warranted (See, e.g., Open Markets Institute, The Urgent Need for Strong Vertical Merger Guidelines (“Enforcers should be vigilant toward dominant platforms’ acquisitions of seemingly small or marginal firms and be ready to block acquisitions that may be part of a monopoly protection strategy. Dominant firms should not be permitted to expand through vertical acquisitions and cut off budding threats before they have a chance to bloom.”); Caroline Holland, Taking on Big Tech Through Merger Enforcement (“Vertical mergers that create market power capable of stifling competition could be particularly pernicious when it comes to digital platforms.”)). 

Thus, further policy guidance from the Agencies on this issue is needed. As the Agencies formulate guidance, they should take note that vertical mergers involving technology start-ups generally promote efficiency and innovation, and that any potential competitive harm almost always can be addressed with easy-to-implement behavioral remedies.

The agencies’ draft vertical merger guidelines

The Draft Guidelines outline the following principles that the Agencies will apply when analyzing vertical mergers:

  • Market definition. The Agencies will identify a relevant market and one or more “related products.” (§ 2) This is a product that is supplied by the merged firm, is vertically related to the product in the relevant market, and to which access by the merged firm’s rivals affects competition in the relevant market. (§ 2)
  • Safe harbor. Unlike horizontal merger cases, the Agencies cannot rely on changes in concentration in the relevant market as a screen for competitive effects. Instead, the Agencies consider measures of the competitive significance of the related product. (§ 3) The Draft Guidelines propose a safe harbor, stating that the 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.” (§ 3) However, shares exceeding the thresholds, taken alone, do not support an inference that the vertical merger is anticompetitive. (§ 3)
  • Theories of unilateral harm. Vertical mergers can result in unilateral competitive effects, including raising rivals’ costs (charging rivals in the relevant market a higher price for the related product) or foreclosure (refusing to supply rivals with the related product altogether). (§ 5.a) Another potential unilateral effect is access to competitively sensitive information: The combined firm may, through the acquisition, gain access to sensitive business information about its upstream or downstream rivals that was unavailable to it before the merger (for example, a downstream rival of the merged firm may have been a premerger customer of the upstream merging party). (§ 5.b)
  • Theories of coordinated harm. Vertical mergers can also increase the likelihood of post-merger coordinated interaction. For example, a vertical merger might eliminate or hobble a maverick firm that would otherwise play an important role in limiting anticompetitive coordination. (§ 7)
  • Procompetitive effects. Vertical mergers can have procompetitive effects, such as the elimination of double marginalization (“EDM”). A merger of vertically related firms can create an incentive for the combined entity to lower prices on the downstream product, because it will capture the additional margins from increased sales on the upstream product. (§ 6) EDM thus may benefit both the merged firm and buyers of the downstream product. (§ 6)
  • Efficiencies. Vertical mergers have the potential to create cognizable efficiencies; the Agencies will evaluate such efficiencies using the standards set out in the Horizontal Merger Guidelines. (§ 8)

Implications for vertical mergers involving nascent start-ups

At present, the Draft Guidelines do not address theories of nascent or potential competition. To the extent the Agencies provide further guidance regarding the treatment of vertical mergers involving nascent start-ups, they should take note of the following facts:

First, empirical evidence from strategy literature indicates that technology-related vertical mergers are likely to be efficiency-enhancing. In a survey of the strategy literature on vertical integration, Professor D. Daniel Sokol observed that vertical acquisitions involving technology start-ups are “largely complementary, combining the strengths of the acquiring firm in process innovation with the product innovation of the target firms.” (p. 1372) The literature shows that larger firms tend to be relatively poor at developing new and improved products outside of their core expertise, but are relatively strong at process innovation (developing new and improved methods of production, distribution, support, and the like). (Sokol, p. 1373) Larger firms need acquisitions to help with innovation; acquisition is more efficient than attempting to innovate through internal efforts. (Sokol, p. 1373)

Second, vertical merger policy towards nascent competitor acquisitions has important implications for the rate of start-up formation, and the innovation that results. Entrepreneurship in technology markets is motivated by the opportunity for commercialization and exit. (Sokol, p. 1362 (“[T]he purpose of such investment [in start-ups] is to reap the rewards of scaling a venture to exit.”))

In recent years, as IPO activity has declined, vertical mergers have become the default method of entrepreneurial exit. (Sokol, p. 1376) Increased vertical merger enforcement against start-up acquisitions thus closes off the primary exit strategy for entrepreneurs. As Prof. Sokol concluded in his study of vertical mergers:

When antitrust agencies, judges, and legislators limit the possibility of vertical mergers as an exit strategy for start-up firms, it creates risk for innovation and entrepreneurship…. it threatens entrepreneurial exits, particularly for tech companies whose very business model is premised upon vertical mergers for purposes of a liquidity event. (p. 1377)

Third, to the extent that the vertical acquisition of a start-up raises competitive concerns, a behavioral remedy is usually preferable to a structural one. As explained above, vertical acquisitions typically result in substantial efficiencies, and these efficiencies are likely to overwhelm any potential competitive harm. Further, a structural remedy is likely infeasible in the case of a start-up acquisition. Thus, behavioral relief is the only way of preserving the deal’s efficiencies while remedying the potential competitive harm. (Which the Agencies have recognized, see DOJ Antitrust Division, Policy Guide to Merger Remedies, p. 20 (“Stand-alone conduct relief is only appropriate when a full-stop prohibition of the merger would sacrifice significant efficiencies and a structural remedy would similarly eliminate such efficiencies or is simply infeasible.”)) Appropriate behavioral remedies for vertical acquisitions of start-ups would include firewalls (restricting the flow of competitively sensitive information between the upstream and downstream units of the combined firm) or a fair dealing or non-discrimination remedy (requiring the merging firm to supply an input or grant customer access to competitors in a non-discriminatory way) with clear benchmarks to ensure compliance. (See Policy Guide to Merger Remedies, pp. 22-24)

To be sure, some vertical mergers may cause harm to competition, and there should be enforcement when the facts justify it. But vertical mergers involving technology start-ups generally enhance efficiency and promote innovation. Antitrust’s goals of promoting competition and innovation are thus best served by taking a measured approach towards vertical mergers involving technology start-ups. (Sokol, pp. 1362–63) (“Thus, a general inference that makes vertical acquisitions, particularly in tech, more difficult to approve leads to direct contravention of antitrust’s role in promoting competition and innovation.”)

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Sharis Pozen (Partner, Clifford Chance; former Vice President of Global Competition Law and Policy, GE; former Acting Assistant Attorney General, DOJ Antitrust Division); with Timothy Cornell (Partner, Clifford Chance); Brian Concklin (Counsel, Clifford Chance); and Michael Van Arsdall (Counsel, Clifford Chance).]

The draft Vertical Merger Guidelines (“Guidelines”) miss a real opportunity to provide businesses with consistent guidance across jurisdictions and to harmonize the international approach to vertical merger review

As drafted, the Guidelines indicate the agencies will evaluate market shares and concentration — measured using the same methodology described in the long-standing Horizontal Merger Guidelines — but not use these metrics as a “rigid screen.” On that basis the Guidelines establish a “soft” 20 percent threshold, where the U.S. Agencies are “unlikely to challenge a vertical merger” if the merging parties have less than a 20 percent share of the relevant market and the related product is used in less than 20 percent of the relevant market.

We suggest, instead, that the Guidelines be aligned with those of other jurisdictions, namely the EU non-horizontal merger guidelines [for an extended discussion of which, see Bill Kolaasky’s symposium post here —ed.]. The European Commission’s guidelines state the European Commission is “unlikely to find concern” with a vertical merger affecting less than 30 percent of the relevant markets and the post-merger HHIs fall below 2000. Among others, Japan and Chile employ a similarly higher bar than the Guidelines. A discrepancy between the U.S. and other international guidelines causes unnecessary uncertainty within the business and legal communities and could lead to inconsistent enforcement outcomes.In any event, beyond the dangers created by a lack of international harmonization, setting the threshold at 20 percent seems arbitrarily low given the pro-competitive nature of most vertical mergers. Setting the threshold so low fails to recognize the inherently procompetitive nature of the majority of vertical combinations, and could result in false positives, and undue cost and delay.

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Eric Fruits (Chief Economist, International Center for Law & Economics and Professor of Economics, Portland State University).]

Vertical mergers are messy. They’re messy for the merging firms and they’re especially messy for regulators charged with advancing competition without advantaging competitors. Firms rarely undertake a vertical merger with an eye toward monopolizing a market. Nevertheless, competitors and competition authorities excel at conjuring up complex models that reveal potentially harmful consequences stemming from vertical mergers. In their post, Gregory J. Werden and Luke M. Froeb highlight the challenges in evaluating vertical mergers:

[V]ertical mergers produce anticompetitive effects only through indirect mechanisms with many moving parts, which makes the prediction of competitive effects from vertical mergers more complex and less certain.  

There’s a recurring theme throughout this symposium: The current Vertical Merger Guidelines should be updated; the draft Guidelines are a good start, but they raise more questions than they answer. Other symposium posts have hit on the key ups and downs of the draft Guidelines. 

In this post, I use the draft Guidelines’ examples to highlight how messy vertical mergers can be. The draft Guidelines’ examples are meant to clarify the government’s thinking on markets and mergers. In the end, however, they demonstrate the complexity in identifying relevant markets, related products, and the dynamic interaction of competition. I will focus on two examples provided in the draft Guidelines. Warning: you’re going to read a lot about oranges.

In the following example from the draft Guidelines, the relevant market is the wholesale supply of orange juice in region X and Company B’s supply of oranges is the related product

Example 2: Company A is a wholesale supplier of orange juice. It seeks to acquire Company B, an owner of orange orchards. The Agencies may consider whether the merger would lessen competition in the wholesale supply of orange juice in region X (the relevant market). The Agencies may identify Company B’s supply of oranges as the related product. Company B’s oranges are used in fifteen percent of the sales in the relevant market for wholesale supply of orange juice. The Agencies may consider the share of fifteen percent as one indicator of the competitive significance of the related product to participants in the relevant market.

The figure below illustrates one hypothetical structure. Company B supplies an equal amount of oranges to Company A and two other wholesalers, C and D, totalling 15 percent of orange juice sales in region X. Orchards owned by others account for the remaining 85 percent. For the sake of argument, assume all the wholesalers are the same size in which case Company B’s orchard would supply 20 percent of the oranges used by wholesalers A, C, and D.

Orange juice sold in a particular region is just one of many uses for oranges. The juice can be sold as fresh liquid, liquid from concentrate, or frozen concentrate. The fruit can be sold as fresh produce or it can be canned, frozen, or processed into marmalade. Many of these products can be sold outside of a particular region and can be sold outside of the United States. This is important in considering the next example from the draft Guidelines.

Example 3: In Example 2, the merged firm may be able to profitably stop supplying oranges (the related product) to rival orange juice suppliers (in the relevant market). The merged firm will lose the margin on the foregone sales of oranges but may benefit from increased sales of orange juice if foreclosed rivals would lose sales, and some of those sales were diverted to the merged firm. If the benefits outweighed the costs, the merged firm would find it profitable to foreclose. If the likely effect of the foreclosure were to substantially lessen competition in the orange juice market, the merger potentially raises significant competitive concerns and may warrant scrutiny.

This is the classic example of raising rivals’ costs. Under the standard formulation, the merged firm will produce oranges at the orchard’s marginal cost — in theory, the price it pays for oranges would be the same both pre- and post-merger. If orchard B does not sell its oranges to the non-integrated wholesalers C, D, and E, the other orchards will be able to charge a price greater than their marginal cost of production and greater than the pre-merger market price for oranges. The higher price of oranges used by non-integrated wholesalers will then be reflected in higher prices for orange juice sold by the wholesalers. 

The merged firm’s juice prices will be higher post-merger because its unintegrated rivals’ juice prices will be higher, thus increasing the merged firm’s profits. The merged firm and unintegrated orchards would be the “winners;” unintegrated wholesalers and consumers would be the “losers.” Under a consumer welfare standard the result could be deemed anticompetitive. Under a total welfare standard, anything goes.

But, the classic example of raising rivals’ costs is based on some strong assumptions. It assumes that, pre-merger, all upstream firms price at marginal cost, which means there is no double marginalization. It assumes all the upstream firm’s products are perfectly identical. It assumes unintegrated firms don’t respond by integrating themselves. If one or more of these assumptions is not correct, more complex models — with additional (potentially unprovable) assumptions — must be employed. What begins as a seemingly straightforward theoretical example is now a battle of which expert’s models best fit the facts and best predicts the likely outcome. 

In the draft Guidelines’ raising rivals’ costs example, it’s assumed the merged firm would refuse to sell oranges to rival downstream wholesalers. However, if rival orchards charge a sufficiently high price, the merged firm would profit from undercutting its rivals’ orange prices, while still charging a price greater than marginal cost. Thus, it’s not obvious that the merged firm has an incentive to cut off supply to downstream competitors. The extent of the pricing pressure on the merged firm to cheat on itself is an empirical matter that depends on how upstream and downstream firms react, or might react.

For example, using the figure above, if the merged firm stopped supplying oranges to rival wholesalers, then the merged firm’s orchard would supply 60 percent of the oranges used in the firm’s juice. Although wholesalers C and D would not get oranges from B’s orchards, they could obtain oranges from other orchards that are no longer supplying wholesaler A. In this case, the merged firm’s attempt at foreclosure would have no effect and there would be no harm to competition.

It’s possible the merged firm would divert some or all of its oranges to a “secondary” market, removing those oranges from the juice market. Rather than juicing oranges, the merged firm may decide to sell them as fresh produce; fresh citrus fruits account for 7 percent of Florida’s crop and 75% of California’s. This diversion would lead to a decline in the supply of oranges for juice and the price of this key input would rise. 

But, as noted in the Guidelines’ example, this strategy would raise the merged firm’s costs along with its rivals. Moreover, rival orchards can respond to this strategy by diverting their own oranges from “secondary” markets to the juice market, in which case there may be no significant effect on the price of juice oranges. What begins as a seemingly straightforward theoretical example is now a complicated empirical matter. Or worse, it may just be a battle over which expert is the most convincing fortune teller.

Moreover, the merged firm may have legitimate business reasons for the merger and legitimate business reasons for reducing the supply of oranges to juice wholesalers. For example “citrus greening,” an incurable bacterial disease, has caused severe damage to Florida’s citrus industry, significantly reducing crop yields. A vertical merger could be one way to reduce supply risks. On the demand side, an increase in the demand for fresh oranges would guide firms to shift from juice and processed markets to the fresh market. What some would see as anticompetitive conduct, others would see as a natural and expected response to price signals.Because of the many alternative uses for oranges, it’s overly simplistic to declare that the supply of orange juice in a specific region is “the” relevant market. Orchards face a myriad of options in selling their products. Misshapen fruit can be juiced fresh or as frozen concentrate; smaller fruit can be canned or jellied. “Perfect” fruit can be sold as fresh produce, juice, canned, or jellied. Vertical integration with a juice wholesaler adds just one factor to the myriad factors affecting how and where an upstream supplier sells its products. Just as there is no single relevant market, in many cases there is no single related product — a fact that is especially relevant in vertical relationships. Unfortunately the draft Guidelines provide little guidance in these important areas.

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.

This post is authored by Steven J. Cernak (Partner, Bona Law; Adjunct Professor, University of Michigan Law School and Western Michigan University Thomas M. Cooley Law School; former antitrust counsel, GM).] 

[Cernak: This paper represents the current views of the author alone and not necessarily the views of any past, present, or future employer or client.]

What should we make of Cmr. Chopra’s and Cmr. Slaughter’s dissents?

When I first heard that the FTC and DOJ Antitrust Division issued the draft Vertical Merger Guidelines late on Friday January 10, I did not rush out and review them to form an opinion, antitrust geek though I am. The issuance was not a surprise, given that the 1984 Guidelines were more than 35 years old and described as outdated by all observers, including those at an FTC hearing more than a year earlier. So I was surprised when I saw some pundits, especially on Twitter, immediately found the new draft controversial and I learned that two of the FTC Commissioners had not supported the release. Surely nobody was a big 1984 supporter other than fans of Orwell, Bowie, and Morris, right? 

Some of my confusion dissipated as I had a chance to read and analyze the draft guidelines and the accompanying statements of Commissioners Wilson, Slaughter, and Chopra. First, Commissioners Slaughter and Chopra only abstained from the decision to release the draft for public comment. In their statements, they explained their actions as necessary to register their disagreement with the terms of this particular draft but that they too joined the chorus calling for repudiation of the 1984 Guidelines. 

But some of my confusion remained as I went over Commissioner Chopra’s statement again. Instead of objections to particular provisions of the draft guidelines, the statement is more of a litany of complaints on all that is wrong with today’s economy and antitrust policy’s role in it. Those complaints are ones we have heard from Commissioner Chopra before. They certainly should be part of the general policy debate; however, they seem to go well beyond competitive issues that might be raised by vertical mergers and that should be part of a set of guidelines. 

As the first sentence and footnote of the draft guidelines make clear, the draft guidelines are meant to “outline the principal analytical techniques, practices and enforcement policy of … the Agencies” and “reflect the ongoing accumulation of experience at the Agencies.” They are written to provide some guidance to potential merging parties and their advisers as to how the Agencies are likely to analyze a merger and, so, provide some greater level of certainty. That does not mean that the guidelines are meant to capture the techniques of the Agencies in amber forever – or even 35 years. As that same first footnote makes clear, the guidelines may be revised to “reflect significant changes in enforcement policy…or to reflect new learning.” But guidelines designed to provide some clarity on how vertical mergers have been and will be reviewed are not the forum for a broad exchange of views on antitrust policy. Those comments are more helpful in FTC hearings, speeches, or enforcement actions that the Commissioners might participate in, not guidelines for practitioners. 

Commissioner Slaughter’s statement, on the other hand, stays focused on vertical mergers and the issues that she has with these draft guidelines. She and other early commentators raise at least some questions about the current draft that I hope will be addressed in the final version. For instance, the 1984 version of the guidelines included as potential anticompetitive effects from vertical mergers 1) regulatory evasion and 2) the creation of the need for potential entrants to enter at multiple stages of the market. As Commissioner Slaughter points out, the current draft guidelines drop those two and instead focus on 1) foreclosure; 2) raising rivals’ costs; and 3) the exchange of competitively sensitive information. 

Should we take the absence of the two 1984 harms as an indication that those types of harms are no longer important to the Agencies? Or that they have not been important in recent Agency action, and so did not make this draft, but would still be considered if the correct facts were found? Some other option? While the new guidelines would become too long and unwieldy if they recited and rejected all potential theories of harm, I join Commissioner Slaughter in thinking it would be helpful to include an explanation regarding these particular changes from the prior guidance. 

Who bears the burden on elimination of double marginalization?

Finally, both Commissioner Wilson’s and Commissioner Slaughter’s statements specifically request public comments regarding certain features of the draft guidelines’ handling of the elimination of double marginalization (“EDM”). While they raise good questions, I want to focus on a more fundamental question raised by the draft guidelines and a recent speech by Assistant Attorney General Makan Delrahim. 

The draft guidelines provide a concise, cogent description of EDM, the usual analysis of it during vertical mergers, and some special factors that might make it less likely to occur. Some commentators have pointed out that EDM gets its own section of the draft guidelines, signaling its importance. I think it even more significant, perhaps, that that separate section is placed in between the sections on unilateral and coordinated competitive effects. Does that placement signal that the analysis of EDM is part of the Agencies’ analysis of the overall predicted competitive effects of the merger? That hypothesis also is supported by this statement at the end of the EDM section: “The Agencies will not challenge a merger if the net effect of elimination of double marginalization means that the merger is unlikely to be anticompetitive in any relevant market.” 

Because the Agencies would have the ultimate burden of showing in court that the effect of the proposed merger “may be substantially to lessen competition, or tend to create a monopoly,” it seems to follow that the Agencies would have the burden to factor EDM into the rest of their competitive analysis to show what the potential overall net effect of the merger would be. 

Unfortunately, earlier in the EDM section of the draft guidelines, the Agencies state that they “generally rely on the parties to identify and demonstrate whether and how the merger eliminates double marginalization.” (emphasis added) Does that statement merely mean that the parties must cooperate with the Agencies and provide relevant information, as required on all points under Hart-Scott-Rodino? Or is it an attempt to shift to the parties the ultimate burden of proving this part of the competitive analysis? That is, is it a signal that, despite the separate section placed in the middle of the discussion of competitive effects analysis, the Agencies are skeptical of EDM and plan to treat it more like a defense as they treat certain cognizable efficiencies? 

That latter position is supported by comments by AAG Delrahim in a recent speech: “as the law requires for the advancement of any affirmative defense, the burden is on the parties in a vertical merger to put forward evidence to support and quantify EDM as a defense.” So is EDM a defense to an otherwise anticompetitive vertical merger or just part of the overall analysis of competitive effects? Before getting to the pertinent but more detailed questions posed by Commissioners Wilson and Slaughter, these draft guidelines would further their goal of providing clarity by answering that more basic EDM question. 

Despite those concerns, the draft guidelines seem consistent with the antitrust community’s consensus today on the proper analysis of vertical mergers. As such, they would seem to be consistent with how the Agencies evaluate such mergers today and so provide helpful guidance to parties considering such a merger. I hope the final version considers all the comments and remains helpful – and is released on a Monday so we can all more easily and intelligently start commenting. 

[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.]

This post is authored by Timothy J. Brennan (Professor, Public Policy and Economics, University of Maryland; former Chief Economist, FCC; former economist, DOJ Antitrust Division).

The DOJ Antitrust Division and the FTC have issued draft proposed Vertical Merger Guidelines (VMGs). These have been long-desired in some quarters, and long-dreaded in others. The controversy remains, although those who long desired them may dread what they got, and vice versa. 

I’ve accepted Geoff’s invitation to offer some short thoughts on this blessedly short draft. I’ll focus on what one might call “pure” vertical mergers, as opposed to those based on concerns regarding potential entry or expansion by a vertically integrated firm into its upstream or downstream market. After looking at what the draft classifies as unilateral effects, I’ll then turn briefly to coordinated effects, burden of proof, and the whether we want to go there at all

A notable omission

It’s useful to think of pure vertical mergers mergers in a reverse direction; that is, not the harms they would create, but the benefits of blocking the merger even if it were harmful. The usual argument against prosecuting such mergers is that one would be left with separate firms charging above-competitive prices at one end or the other — and if they do it at both ends, creating double marginalization. 

In that regard, the draft has a notable omission: a skeptical eye toward mergers when a firm with market power is unable to charge a consequently high price. The usual justification is price regulation of a monopoly. Concern about the harm of vertical integration as a means to evade such regulation was the basis for the divestiture by AT&T of its then-regulated, then-monopoly local telephone companies, the mirror image of blocking a vertical merger. This concern also formed the basis of Federal Energy Regulatory Commission orders (here and here) separating control of regulated electricity transmission lines from ownership of unregulated generation.

More controversially, one could apply this in contexts where pricing is limited by something other than explicit regulation. TOTM has recently featured a debate between Geoff Manne and Dirk Auer on one side and Mark Lemley, Doug Melamed, and Steve Salop regarding the FTC’s case against Qualcomm’s licensing practices, where the issue (I think) is about whether FRAND licensing requirements limit Qualcomm’s ability to extract the full rental value of its patents. Perhaps even more out there, I’ve suggested that transaction costs keeping Google from charging directly for search could justify concern with discrimination in favor of its offerings in other markets, without having to reject a consumer welfare standard and where “free” search could justify rather than impede an antitrust case. Whether non-regulatory restrictions on price should justify vertical concerns is, to say the least, complicated. You’ll see that word often, and I’ll come back to it at the end

Raising rivals’ costs and foreclosure: Why would the merger matter?

The seeming truism of raising rivals’ costs is that to raise someone’s costs, you have to raise the price of an input they use or a complement they need. If a merger (or vertical restraint) extends control over an input or complement, the competitive risk arises because that complement market is being monopolized. Accordingly, enforcers need to ensure they are looking at competition and ease of entry in the market that’s being monopolized, not the market in which the bad guy who benefits might operate. For example, in the case involving Intel’s loyalty rebates to computer makers that allegedly excluded AMD’s processing chips, the relevant market was not chips but computers, and it is necessary to explain why AMD couldn’t get new computer makers to use its chips or vertically integrate itself into computers. 

With a “pure” vertical merger, however, the raising rivals’ cost or foreclosure story depends not on the creation or expansion of market power over an input or complement. It must depend on how vertical integration leads to the exercise of power in that market that was not being exercised before. That requires that vertical integration changes the strategic interactions determining price and quality. 

If this is the story, however, the agencies should make clear that they bear an obligation to explain how vertical integration matters, rather than assume a competitive outcome otherwise. The recent (failed) Justice Department challenge to AT&T’s vertical acquisition of Time Warner programming bears this out. DOJ’s core claim was that post-merger, Time Warner program services (HBO, CNN) would strike tougher deals with other video distributors, leading to higher licensing fees, because they would know that a failed negotiation would increase subscribership to AT&T. However, once a program service licenses to any video distributor, it realizes that if other video distributors don’t take their service, it will increase subscribers and profits from its initial deal. If that change in bargaining position benefits whoever gets the first deal, distributors presumably can cut a deal to be the first, without vertical merger being necessary. 

Might vertical merger still matter? Perhaps, but plaintiffs should have to explain what transaction costs prevent such a nominally anticompetitive deal. Critics of indifference to vertical mergers, and the draft VMGs, point out that double marginalization might be eliminated without vertical integration, through use of contracts that include fixed fees and sales at marginal cost. A similar skepticism regarding the need for vertical integration to achieve anticompetitive ends is similarly appropriate. Establishing that need may be, well, complicated

Coordination and symmetry

I have less to say about coordinated effects. Knowing when firms decide to switch from competing to cooperating is probably a matter of psychology and sociology as much as economics. However, economics does suggest that collusion is more likely the more symmetric are the positions of the potential colluders, to help find a mutually agreeable tactic and reduce the need for side payments and the like. To the extent symmetry is relevant, a pure vertical merger will facilitate collusion only if other market participants were similarly integrated. And absent market-wide collusion to integrate, this integration of the other participants could be reasonably interpreted as evidence of efficiencies of vertical integration. This would make a coordinated effects vertical merger case, well, complicated.

The burden of proof

As part of a widely voiced dissatisfaction with the last few decades of antitrust enforcement, some commentators have suggested that vertical mergers deserve no more of a presumption of being good than horizontal mergers. I would argue that the strength of evidence necessary to block a vertical merger should remain greater than that for horizontal mergers. This is not (just) because mergers between complements are more likely to lead prices to fall — eliminating double marginalization being an example — while horizontal mergers are likely to bring about upward pricing pressure. It is that the behavior that warrants concern with horizontal mergers, joint price setting, is illegal. Thus, the horizontal merger might be the only way to enable that conduct. 

Contracting alternatives to vertical merger abound, as two-part pricing to eliminate double marginalization and sequential per-subscriber pricing in video markets illustrate. Absent regulation, the transaction costs necessary to create and exercise market power but for vertical integration will be lower than those necessary to create and exercise that power but for horizontal merger. This difference in transaction costs means that horizontal merger is more likely to be necessary for harm than vertical merger. Thus, proving that the latter are harmful should be, well, more complicated.

So, are pure vertical mergers worth the trouble to prosecute?

Vertical mergers might be problematic, but cases are necessarily going to be complicated. This raises the question of whether the benefits of prosecuting such mergers are worth the costs, at least outside the regulated industry context. These costs are not just the cost of litigation but the costs to companies of having to hire antitrust counsel and consultants to try to determine whether their merger is likely to be challenged, how much negotiation with the agencies will be entailed, and what the likelihood of loss in court will be. Some aspects of antitrust enforcement, primarily determining who competes with whom and how much, are inevitably complicated. But it is not clear that we are better off expending the resources to see whether something is bad, rather than accepting the cost of error from adopting imperfect rules — even rules that imply strict enforcement. Pure vertical merger may be an example of something that we might just want to leave be.