Proving Anticompetitive Impact: Moving Past Merger Guidelines Presumptions

Abstract

Because antitrust challenges to mergers almost always occur prior to consummation, there is rarely direct evidence of whether a merger is likely to have a substantial competitive impact. As a result, litigants frequently utilize a dizzying array of indirect evidence including statistical presumptions, customer affidavits, econometric models, quotes from strategic documents, sales call reports, and e-mails. In short, everything but the kitchen sink, and sometimes even that. Despite, or perhaps because of, the volume of evidence, courts have struggled to move beyond market definition and barriers to entry towards a coherent analysis of likely competitive impact. Indeed, two recent cases, Federal Trade Commission v. Arch Coal Inc. and United States v. Oracle Corp., are notable because they represent the most detailed judicial examination of the conditions under which coordinated and unilateral effects are likely. And, at least in one of them, Oracle, the Court openly struggled for guidance on the appropriate requirements of theory, going so far as to request counsel to brief the court on whether unilateral effects were even viable. These two cases, and United States v. SunGard Data Systems, Inc. before them, suggest that the Government has had great difficulty in identifying transactions that courts will conclude are likely to cause competitive harm. The purpose of this paper is to discuss why the FTC and DOJ struggle to identify transactions that are likely to cause competitive harm, and to discuss specific proposals to remedy the situation.