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Competition Policy and the Control of Buyer Power

A Global Issue

Peter C. Carstensen

This book provides a comprehensive overview of the economic and competition policy issues that buyer power creates. Drawing on economic analysis and cases from around the world, it explains why conventional seller side standards and analyses do not provide an adequate framework for responding to the problems that buyer power can create. Based on evidence that abuse of buyer power is a serious problem for the competitive process, the book evaluates the potential for competition law to deal directly with the problems of abuse either through conventional competition law or special rules aimed at abusive conduct. The author also examines controls over buying groups and mergers as potentially more useful responses to risks created by undue buyer power.
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Chapter 8: Controlling the creation of buyer power through merger policy

A Global Issue

Peter C. Carstensen

Extract

This chapter addresses merger policy where the merger will enhance buyer power. By forbidding such mergers, it is possible to limit the emergence of buyer power. The chapter shows, first, that such mergers create competitive risks analogous to those created by mergers that increase seller power, but it also focuses on the ways in which buyer side effects are distinct because of potential harms from even modest increases in buyer concentration, the greater durability of buyer power (compared to seller power), and the potential that the effects of such mergers will primarily impact upstream markets rather than the one most directly changed by the merger. This analysis leads to a discussion of buyer side merger analysis including market definition, the market share triggers for concern and the defenses that might be considered. The chapter ends with a review of actual enforcement of merger law with respect to buyer issues in the United States, the EU, and elsewhere in the world. The basic conclusion from that review is that buyer side concerns are significantly under-emphasized in contemporary merger enforcement.

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