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68 U. Kan. L. Rev. 1017 (2019-2020)
Paradigm Shifts on Merger Efficiencies in Antitrust Analysis

handle is hein.journals/ukalr68 and id is 1069 raw text is: 








Paradigm Shifts on Merger Efficiencies in
Antitrust Analysis

Jdssica Dutra*

INTRODUCTION

    Efficiencies are often used  as a motivation  for mergers.   There is a
trade-off between   the improvement of society's welfare generated by
mergers  when  the resulting firm achieves significant efficiencies, and the
potential consumer  harm  generated by the increase in market power.'  The
question  then  becomes not purely whether mergers are capable of
producing   efficiencies, but to which extent  antitrust/competition policy
will take them under  consideration,2 either placing emphasis on consumer
protection or total welfare.3
    Established  in conjunction  between  the  U.S. Department   of Justice
and  the Federal Trade  Commission (the   Agencies),  the 2010  Horizontal
Merger   Guidelines  (2010 Guidelines)  state that [t]he Agencies  seek to
identify and  challenge  competitively  harmful   mergers  while  avoiding
unnecessary   interference  with  mergers   that are  either competitively
beneficial  or neutral.4   Mergers   in the  United  States  are formally
evaluated under  the Rule of Reason-a legal   doctrine that establishes that
antitrust cases must be evaluated on the merits, based on evidence  of each
particular case,  to establish  whether  the  conduct  at  issue yields  an



. Jessica Dutra, Ph.D., is a Senior Economist at Economists Incorporated in Washington, DC, where
she consults on competition matters on a wide range of industries including health and the electric
power industries. She may be contacted at dutraj@ei.com.
    1. See Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58
AM. ECON. REV. 18 (1968) [hereinafter Williamson, The Welfare Tradeoffs]; Oliver E. Williamson,
Economies as an Antitrust Defense Revisited, 125 U. PA. L. REV. 699, 705 (1977).
    2. Ilene Knable Gotts & Calvin S. Goldman, The Role ofEfficiencies in A&A Global Antitrust
Review: Still in Flux?, in FORDHAM CORPORATE LAW INSTITUTE: INTERNATIONAL ANTITRUST LAW
&POLICY 201 (Barry E. Hawk ed., 2003).
    3. See DANIEL J. GIFFORD & ROBERT T. KUDRLE, THE ATLANTIC DIVIDE IN ANTITRUST: AN
EXAMINATION OF US AND EU COMPETITION POLICY 25 (2015) (exploring the meanings that may
attach to 'welfare' as the primary goal of competition policy and how economic welfare ... relate[s]
to ... monopolization in the United States and dominance in Europe).
    4. U.S. DEP'T OF JUSTICE & FED. TRADE COMM'N, HORIZONTAL MERGER GUIDELINES 1
(2010), https://wwwjustice.gov/sites/default/files/atr/legacy/2010/08/19/hmg-2010.pdf  [https://
perma.cc/KM9N-2Z4U] [hereinafter 2010 HORIZONTAL MERGER GUIDELINES].


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