ASCOLA Competition Law series
Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 12: Efficiencies in Merger Analysis: Alchemy in the Age of Empiricism?
12. Eﬃciencies in merger analysis: alchemy in the age of empiricism? Thomas L Greaney* 1 INTRODUCTION One is hard-pressed to ﬁnd in law an undertaking more fraught with uncertainty than the application of the eﬃciencies defence in merger analysis. Generalist fact ﬁnders (judges) and politically attuned government oﬃcials (prosecutors and regulators) are charged with two Herculean tasks: (1) predicting the outcome of organic changes in business enterprises and (2) comparing the magnitude of those changes to the equally uncertain amount of harm to future competition that the transaction will cause. Given the enormous, perhaps intractable, uncertainty of this inquiry, it is therefore paradoxical that many of the strongest advocates for strengthening the role of eﬃciencies analysis in merger reviews are self-described proponents of bringing a ‘new empiricism’ to antitrust analysis.1 This chapter focuses on the tensions inherent in incorporating an eﬃciencies defence (or evaluating eﬃciencies as part of the appraisal of mergers) and maintaining the rigour and impartiality promised by proponents of the ‘empirical’ approach. This argument should not be misconstrued as a brief for abandoning the eﬃciencies inquiry altogether. Rather, it is, ﬁrst, an appeal for candour (and humility) by those undertaking the inquiry; and second, it is a brief for constraining discretion by imposing * Chester A. Myers Professor, Saint Louis University School of Law. 1 For example, former FTC chairman Timothy Muris has contended that merger law should not rely on presumptions and economic theory alone. Questioning presumptions that increased concentration...
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