Law Commons^™

The Merger Incipiency Doctrine And The Importance Of "Redundant" Competitors, Peter C. Carstensen, Robert H. Lande

All Faculty Scholarship

The enforcers and the courts have not implemented the merger incipiency doctrine in the vigorous manner Congress intended. We believe one important reason for this failure is that, until now, the logic underlying this doctrine has never been explained. The purpose of this article is to demonstrate that markets’ need for “protective redundancy” explains the incipiency policy. We are writing this article in the hope that this will cause the enforcers and courts to implement significantly more stringent merger enforcement.

To vastly oversimplify, the current enforcement approach assumes that if N significant competitors are necessary for competition, N-1 competitors could …

Afterword: Could A Merger Lead To Both A Monopoly And A Lower Price?, Alan A. Fisher Ph.D., Robert H. Lande, Walter Vandaele

All Faculty Scholarship

This article demonstrates that significant net efficiencies from a merger could cause prices to decrease, even if the merger results in a monopoly. The article also shows that a price focus would require substantially more efficiencies to justify an otherwise anticompetitive merger than would an efficiency focus (in other words, it re-does the Williamsonian merger tradeoff, using price to consumers instead of net efficiencies as its focus). We demonstrate this by calculating how large the necessary efficiency gains would have to be to prevent price increases under different market conditions.

Efficiency Considerations In Merger Enforcement, Alan A. Fisher Ph.D., Robert H. Lande

All Faculty Scholarship

This is one of the first articles to demonstrate that the primary goal of antitrust is neither exclusively to enhance economic efficiency, nor to address any social or political factor. Rather, the overriding intent behind the merger laws was to prevent prices to purchasers from rising due to mergers (a wealth transfer concern). This is the first article to show how to analyze mergers with this goal in mind. Doing so challenges the fundamental underpinnings of Williamsonian merger analysis (which assumes mergers should be evaluated only in terms of net efficiency effects).

In this and three related articles we re-do …