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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Paradigm Shifts on Merger Efficiencies in Antitrust Analysis
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