Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Antitrust (6)
- Antitrust enforcement (5)
- Antitrust law (5)
- Competition (5)
- Mergers (3)
-
- Economic theory (2)
- Monopoly (2)
- Vertical merger (2)
- Dispute resolution (Law) (1)
- “in a uniform (1)
- impartial and reasonable manner” (1)
- Administrative procedure (1)
- Antitrust laws (1)
- Competition policy (1)
- Elections (1)
- FTC (1)
- FTC Commissioners (1)
- Federal trade commission (1)
- Foreclosure (1)
- Foreign trade regulation (1)
- Global Administrative Law (1)
- Guidelines (1)
- Horizontal Merger Guidelines (1)
- Incomplete Information (1)
- Litigation (1)
- Market Shares. (1)
- Market power (1)
- Merger Guidelines (1)
- Merger presumptions (1)
- Monopoly power (1)
Articles 1 - 13 of 13
Full-Text Articles in Law and Economics
Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale
Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale
Georgetown Law Faculty Publications and Other Works
Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …
Potential Competition And Antitrust Analysis: Monopoly Profits Exceed Duopoly Profits, Steven C. Salop
Potential Competition And Antitrust Analysis: Monopoly Profits Exceed Duopoly Profits, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This short note prepared for an OECD meeting in June 2021 examines several antitrust issues involving analysis of potential competition. While the analysis is not new, it is still useful to collect them together in a unified fashion to show how they are related. In this regard, all the analysis and conclusions flow from the overarching (and obvious) points that exclusionary conduct and agreements that maintain monopoly power very often harm consumers, and that monopoly profits typically exceed the combined duopoly profits earned by the dominant firm and the entrant, if there is successful entry. While this is not inevitably …
Vertical Mergers In A Model Of Upstream Monopoly And Incomplete Information, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis
Vertical Mergers In A Model Of Upstream Monopoly And Incomplete Information, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis
Georgetown Law Faculty Publications and Other Works
We examine the role of private information on the impact of vertical mergers. A vertical merger can improve the information that is available to an upstream monopolist because, after the merger, the monopolist can observe the cost of its downstream merger partner. In the pre-merger world, because the costs of the downstream firms are private information, the monopolist has incomplete information and cannot implement the monopoly outcome: The expected pre-merger equilibrium price of the downstream product is lower than the monopoly price. After a vertical merger, the equilibrium input price that is charged to the downstream rival can either increase …
The 2010 Hmgs Ten Years Later: Where Do We Go From Here?, Steven C. Salop, Fiona Scott Morton
The 2010 Hmgs Ten Years Later: Where Do We Go From Here?, Steven C. Salop, Fiona Scott Morton
Georgetown Law Faculty Publications and Other Works
In this short article, which is part of a RIO Symposium on the Tenth Anniversary of the 2010 Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints which require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in …
Recommendations And Comments On The Draft Vertical Merger Guidelines, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Recommendations And Comments On The Draft Vertical Merger Guidelines, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Georgetown Law Faculty Publications and Other Works
These recommendations and comments respond 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. We commend the agencies for updating the 1984 non-horizontal merger guidelines by recognizing the substantial advances in economic thinking about vertical mergers in the thirty-five years since those guidelines were issued. Our comments emphasize four issues: (i) the treatment of the elimination of double marginalization (“EDM”), particularly that the draft vertical merger guidelines appear inappropriately to make proof of cognizability part of the agencies burden and that they appear to …
Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Georgetown Law Faculty Publications and Other Works
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear …
The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop
The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV industry, which this …
The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop
The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for …
The Appropriate Legal Standard And Sufficient Economic Evidence For Exclusive Dealing Under Section 2: The Ftc’S Mcwane Case, Steven C. Salop, Sharis A. Pozen, John R. Seward
The Appropriate Legal Standard And Sufficient Economic Evidence For Exclusive Dealing Under Section 2: The Ftc’S Mcwane Case, Steven C. Salop, Sharis A. Pozen, John R. Seward
Georgetown Law Faculty Publications and Other Works
The FTC recently found McWane, Inc. liable for unlawful monopoly maintenance by a 3-1 majority. The dispute among the FTC Commissioners raises important and interesting issues regarding the law and economics of exclusive dealing and the proper evaluation of the competitive effects of exclusionary conduct. Commissioner Wright’s Dissent proposes and utilizes a new legal standard that requires the plaintiff to show “clear evidence” of harm to competition before shifting the burden to the defendant to show procompetitive efficiency benefits. This burden of proof and production on the plaintiff is much higher than showing “probable effect” based on a preponderance of …
What Consensus? Ideology, Politics And Elections Still Matter, Steven C. Salop
What Consensus? Ideology, Politics And Elections Still Matter, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article, which was prepared for an ABA Antitrust Section Panel, discusses the role of ideology and politics in antitrust enforcement and the impact of elections in the last twenty year on enforcement and policy at the federal antitrust agencies. The article explains the differences in antitrust ideologies and their impact on policy preferences. The article then uses a database of civil non-merger complaints by the DOJ and FTC over the last three Presidential administrations to analyze changes in the number, type and other characteristics of antitrust enforcement. It also discusses change in vertical merger enforcement and other antirust policies …
Guiding Section 5: Comments On The Commissioners, Steven C. Salop
Guiding Section 5: Comments On The Commissioners, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
FTC Commissioners Joshua Wright and Maureen Ohlhausen have proposed that the Commission adopt Guidelines for the application of Section 5 to Unfair Methods of Competition. This short note comments on the role of Section 5 distinct from the Sherman Act. It suggests that Section 5 be used to attack and deter certain conduct that falls into gaps of the Sherman Act. This includes exclusionary unilateral conduct that likely leads to the achievement, enhancement, or maintenance of market power (as opposed to monopoly power). It also includes unilateral conduct such as invitations to collude and other practices that facilitate conscious …
Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold
Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold
Georgetown Law Faculty Publications and Other Works
Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws …