The 2020 Vertical Merger Guidelines

The 2020 Vertical Merger Guidelines
Author: Steven C. Salop
Publisher:
Total Pages: 19
Release: 2020
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The FTC and DOJ requested comments on their draft Vertical Merger Guidelines in January 2020. This article is a complete alternative set of suggested Vertical Merger Guidelines that reflects and supplements the approach explained in the comments submitted by the author along with Jonathan. Baker, Nancy Rose and Fiona Scott Morton, as well as their other comments, and might be read in conjunction with those comments. This suggested revision of the Agencies' draft expands the list of potential competition harms and provides illustrative examples. It expands and unifies the discussion and treatment of potential competitive benefits. It deletes the quasi-safe harbor and suggests the circumstances under which competitive harms raise lessened concerns on the one hand and heightened concerns on the other.

Quantifying the Increase in 'Effective Concentration' from Vertical Mergers that Raise Input Foreclosure Concerns

Quantifying the Increase in 'Effective Concentration' from Vertical Mergers that Raise Input Foreclosure Concerns
Author: Steven C. Salop
Publisher:
Total Pages: 0
Release: 2020
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ISBN:

This comment responds to the request by the Federal Trade Commission and the Department of Justice's Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. In this comment, we show that there is an inherent loss of an indirect competitor and competition when a vertical merger raises input foreclosure concerns. We also show that it then is possible to calculate an effective increase in the HHI measure of concentration for the downstream market. We refer to this “proxy” measure as the “dHHI.” We derive the dHHI measure by comparing the pricing incentives and associated upward pricing pressure (“UPP”) involved in two alternative types of acquisitions: (i) vertical mergers that raise unilateral input foreclosure concerns (and the associated vertical GUPPI measures), and (ii) horizontal acquisitions of partial ownership interests among competitors that raise unilateral effects concerns (and the associated modified GUPPI and modified HHI measures).

Revising the U.S. Vertical Merger Guidelines

Revising the U.S. Vertical Merger Guidelines
Author: Steven C. Salop
Publisher:
Total Pages: 52
Release: 2015
Genre:
ISBN:

Mergers and acquisitions are a major component of antitrust law and practice. The U.S. antitrust agencies spend a majority of their time on merger enforcement. The focus of most merger review at the agencies involves horizontal mergers, that is, mergers among firms that compete at the same level of production or distribution.Vertical mergers combine firms at different levels of production or distribution. In the simplest case, a vertical merger joins together a firm that produces an input (and competes in an input market) with a firm that uses that input to produce output (and competes in an output market).Over the years, the agencies have issued Merger Guidelines that outline the type of analysis carried out by the agencies and the agencies' enforcement intentions in light of state of the law. These Guidelines are used by agency staff in evaluating mergers, as well as by outside counsel and the courts.Guidelines for vertical mergers were issued in 1968 and revised in 1984. However, the Vertical Merger Guidelines have not been revised since 1984. Those Guidelines are now woefully out of date. They do not reflect current economic thinking about vertical mergers. Nor do they reflect current agency practice. Nor do they reflect the analytic approach taken in the 2010 Horizontal Merger Guidelines. As a result, practitioners and firms lack the benefits of up-to-date guidance from the U.S. enforcement agencies.

Evaluating the Evidence on Vertical Mergers

Evaluating the Evidence on Vertical Mergers
Author: Marissa Beck
Publisher:
Total Pages: 25
Release: 2020
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ISBN:

The U.S. Department of Justice and Federal Trade Commission issued draft Vertical Merger Guidelines on January 10, 2020. In the discussion on vertical merger policy, some commenters have relied on surveys of the empirical economic literature to justify a procompetitive presumption. This comment reviews two frequently cited surveys of empirical evidence on vertical integration as of 2005-2007, as well as more recent studies not included in those surveys, to determine the extent to which they find that the vertical integration they study was procompetitive or anticompetitive. Upon careful inspection, the evidence they provide on the change in welfare due to vertical mergers is decidedly mixed. Perhaps more importantly, taken as a whole, these studies do not provide evidence for the proposition that all or most vertical mergers are good for consumers.

Assessment of the Vertical Merger Guidelines and Recommendations for the VMGs Commentary

Assessment of the Vertical Merger Guidelines and Recommendations for the VMGs Commentary
Author: Koren Wong-Ervin
Publisher:
Total Pages: 5
Release: 2020
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ISBN:

This article provides an assessment of the key changes in the final DOJ-FTC Vertical Merger Guidelines (VMGs) from the January 2020 Draft Guidelines and offers recommendations for the VMGs Commentary--namely, additional details on how the Agencies will determine the industry-wide average retail price when weighing the upward price pressure created by raising rivals' costs (RRC) and the downward price pressure created by elimination of double marginalization (EDM). We also recommend guidance on remedies. These are important because one of the most important roles of guidelines is to provide private parties with the ability to evaluate and price risk ex ante.

Analyzing Vertical Mergers

Analyzing Vertical Mergers
Author: Roger D. Blair
Publisher:
Total Pages: 63
Release: 2020
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With the adoption of the 2020 Vertical Merger Guidelines, the U.S. antitrust agencies have updated their guidance on vertical mergers for the Twenty-First Century. Although economists have long recognized the procompetitive benefits most vertical mergers generate, the law has not always followed suit, and has sometimes condemned vertical mergers for making the merged firm more efficient. In this article, we attempt to catalogue the extensive list of efficiencies that vertical mergers can generate, trace the often halting efforts to incorporate these insights into the law, and propose a framework that courts and agencies can use to assess the likely competitive effects of vertical transactions. We draw heavily upon leading cases, particularly Baker Hughes and AT&T, with two refinements. First, consistent with the final Guidelines (but not the earlier draft) and the economic literature noting a symmetry between unilateral anticompetitive effects (raising rivals' costs) and procompetitive effects (the elimination of double marginalization), which we call the “unilateral effects tradeoff,” we argue a plaintiff alleging a raising rivals cost (RRC) theory of harm must also address EDM as part of its prima facie case. Second, if the plaintiff carries its prima facie burden, then the defendant should be able to argue, and courts and Agencies should seriously consider, the full range of procompetitive efficiencies, which we call a “holistic efficiency analysis.”

Vertical Merger Enforcement Actions

Vertical Merger Enforcement Actions
Author: Steven C. Salop
Publisher:
Total Pages: 0
Release: 2020
Genre:
ISBN:

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).