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Merger Review

Federal Communications Commission

Derived From: AT&T / DirectTV Merger Order, para 18 et seq. July 2015

"Pursuant to Section 310(d) of the Act, we must determine whether the Applicants have demonstrated that the proposed transfer of control of licenses and authorizations will serve the public interest, convenience, and necessity. [47 U.S.C. § 310(d); 47 C.F.R. § 25.119] In making this determination, we assess whether the proposed transaction complies with the specific provisions of the Act,35 other applicable statutes, and the Commission’s rules.36 If the transaction does not violate a statute or rule, we consider whether the transaction could result in public interest harms by substantially frustrating or impairing the objectives or implementation of the Act or related statutes. We then employ a balancing test weighing any potential public interest harms of the proposed transaction against any potential public interest benefits.38 The Applicants bear the burden of proving, by a preponderance of the evidence, that the proposed transaction, on balance, serves the public interest. If we are unable to find that the proposed transaction serves the public interest for any reason, or if the record presents a substantial and material question of fact, we must designate the Application for hearing.40

"Our public interest evaluation necessarily encompasses the “broad aims of the Communications Act,” which include, among other things, a deeply rooted preference for preserving and enhancing competition, accelerating private sector deployment of advanced services, promoting a diversity of information sources and services to the public, and generally managing the spectrum in the public interest. Our public interest analysis also entails assessing whether the proposed transaction would affect the quality of communications services or result in the provision of new or additional services to consumers. In conducting this analysis, we may consider technological and market changes, and the nature, complexity, and speed of change of, as well as trends within, the communications industry.

"Our competitive analysis, which forms an important part of the public interest evaluation, is informed by, but not limited to, traditional antitrust principles. The Commission and the DOJ each has independent authority to examine the competitive impacts of proposed communications mergers and transactions involving transfers of Commission licenses, but the standards governing the Commission’s competitive review differ somewhat from those applied by the DOJ. The Commission, like the DOJ, considers how a transaction would affect competition by defining a relevant market, looking at the market power of incumbent competitors, and analyzing barriers to entry, potential competition, and the efficiencies, if any, that may result from the transaction.

. . . . .

Moreover, the Commission’s competitive analysis under the public interest standard is broader. For example, the Commission considers whether a transaction would enhance, rather than merely preserve, existing competition, and often takes a more expansive view of potential and future competition in analyzing that issue.

"Finally, our public interest authority enables us, where appropriate, to impose and enforce transaction-related conditions that ensure that the public interest is served by the transaction. Specifically, Section 303(r) of the Communications Act authorizes the Commission to prescribe restrictions or conditions not inconsistent with law that may be necessary to carry out the provisions of the Act. Indeed, our extensive regulatory and enforcement experience enables us, under this public interest authority, to impose and enforce conditions to ensure that the transaction will yield overall public interest benefits. In exercising this authority to carry out our responsibilities under the Act and related statutes, we have imposed conditions to confirm specific benefits or remedy specific harms likely to arise from transactions.

35. Section 310(d) requires that we consider applications as if the proposed transferee were applying for the licenses directly. 47 U.S.C. § 310(d). See Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to Assign Licenses and Transfer Control of Licensees, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4247, ¶ 22 n.42 (2011) (“Comcast-NBCU Order”); Applications for Consent to the Transfer of Control of Licenses, XM Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc., Transferee, MB Docket No. 07-57, Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348, 12363, ¶ 30 n.114 (2008) (“Sirius-XM Order”); News Corp. and DIRECTV Group, Inc. and Liberty Media Corp. for Authority to Transfer Control, Memorandum Opinion and Order, MB Docket No. 07- 18, 23 FCC Rcd 3265, 3276, ¶ 22 n.72 (2008) (“Liberty Media-DIRECTV Order”); Application of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics Corporation (Transferors) and EchoStar Communications Corporation (Transferee), MB Docket No. 01-348, Hearing Designation Order, 17 FCC Rcd 20559, 20574, ¶ 25 n.102 (2002) (“EchoStar-DIRECTV HDO”).

36 See Comcast-NBCU Order, 26 FCC Rcd at 4247, ¶ 22; Sirius-XM Order, 23 FCC Rcd at 12363-64, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3276-77, ¶ 22; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20574, ¶ 25.

38 See id.; General Motors Corp. and Hughes Electronics Corp., Transferors, and the News Corporation, Transferee, MB Docket No. 03-124, Memorandum Opinion and Order, 19 FCC Rcd 473, 483, ¶ 15 (2004) (“News Corp.-Hughes Order”).

40 See 47 U.S.C. § 309(e); see also Comcast-NBCU Order, 26 FCC Rcd at 4247-48, ¶ 22; Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3277, ¶ 22; News Corp.-Hughes Order, 19 FCC Rcd at 483, ¶ 15 n.49; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20574, ¶ 25.

  • Comcast-NBCU Order, 26 FCC Rcd ¶ 22 "Pursuant to Section 310(d) of the Act, we must determine whether the proposed assignment and transfer of control of certain licenses and authorizations [] will serve “the public interest, convenience, and necessity.” 47 U.S.C. § 310(d). 
  • In making this determination, we must assess whether the proposed transaction complies with the specific provisions of the Act, other applicable statutes, and the Commission’s Rules. Section 310(d) requires that the Commission consider the applications as if the proposed transferee were applying for the licenses directly.  47 U.S.C. § 310(d).  See Applications for Consent to the Transfer of Control of Licenses, XM Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc., Transferee, Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348, 12363, ¶ 30 (2008) (“Sirius-XM Order”); News Corp. and DIRECTV Group, Inc. and Liberty Media Corp. for Authority to Transfer Control, Memorandum Opinion and Order, 23 FCC Rcd 3265, 3276, ¶ 22 (2008) (“Liberty Media-DIRECTV Order”); SBC Comm. Inc. and AT&T Corp. Applications for Approval of Transfer of Control, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18300, ¶ 16 (2005) (“SBC-AT&T Order”).  See Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3276, ¶ 22; SBC-AT&T Order, 20 FCC Rcd at 18300, ¶ 16.
  • If the transaction would not violate a statute or rule, the Commission considers whether a grant could result in public interest harms by substantially frustrating or impairing the objectives or implementation of the Act or related statutes. See Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3276, ¶ 22; SBC-AT&T Order, 20 FCC Rcd at 18300, ¶ 16.  
  • The Commission then employs a balancing test, weighing any potential public interest harms of the proposed transaction against any potential public interest benefits. See Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3276, ¶ 22; SBC-AT&T Order, 20 FCC Rcd at 18300, ¶ 16; News Corp.-Hughes Order, 19 FCC Rcd at 483, ¶ 15.
  • The Applicants bear the burden of proving, by a preponderance of the evidence, that the proposed transaction, on balance, serves the public interest.See Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30, Liberty Media-DIRECTV Order, 23 FCC Rcd at 3277, ¶ 22; SBC-AT&T Order, 20 FCC Rcd at 18300, ¶ 16; Application for Consent to Transfer of Control of Licenses from Comcast Corporation and AT&T Corp., Transferors, to AT&T Comcast Corporation, Transferee, Memorandum Opinion and Order, 17 FCC Rcd 23246, 23255, ¶ 26 (2002) (“Comcast-AT&T Order”).
  • If we are unable to find that the proposed transaction serves the public interest for any reason, or if the record presents a substantial and material question of fact, we must designate the Application for hearing. 47 U.S.C. § 309(e); see also Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 30; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3277, ¶ 22; News Corp.-Hughes Order, 19 FCC Rcd at 483 n.49; Application of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics Corporation (Transferors) and EchoStar Communications Corporation (Transferee), Hearing Designation Order, 17 FCC Rcd 20559, 20574, ¶ 25 (2002) (“EchoStar-DIRECTV HDO”).
  • Our public interest evaluation necessarily encompasses the “broad aims of the Communications Act” Sirius-XM Order, 23 FCC Rcd at 12364, ¶ 31; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3277-78, ¶ 23; Applications of AT&T Wireless Services, Inc. and Cingular Wireless Corp. for Consent to Transfer Control of Licenses and Authorizations, Memorandum Opinion and Order, 19 FCC Rcd 21522, 21544, ¶ 41 (2004) (“Cingular-AT&T Wireless Order”); News Corp.-Hughes Order, 19 FCC Rcd at 483-84, ¶ 16; Comcast-AT&T Order, 17 FCC Rcd at 23255, ¶ 27; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20575, ¶ 26.
  • It includes, among other things, a deeply rooted preference for preserving and enhancing competition in relevant markets, accelerating private-sector deployment of advanced services, ensuring a diversity of information sources and services to the public, 47 U.S.C. § 521(4); see also 47 U.S.C. § 532(a) and generally managing spectrum in the public interest. 
  • Our public interest analysis may also entail assessing whether the transaction will affect the quality of communications services or will result in the provision of new or additional services to consumers. See Sirius-XM Order, 23 FCC Rcd at 12365, ¶ 31; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3277-78, ¶ 23; Cingular-AT&T Wireless Order, 19 FCC Rcd at 21544, ¶ 41; Comcast-AT&T Order, 17 FCC Rcd at 23255, ¶ 27.
  • In conducting this analysis, the Commission may consider technological and market changes as well as trends within the communications industry, including the nature and rate of change. See Sirius-XM Order, 23 FCC Rcd at 12365, ¶ 31; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3278, ¶ 23; Comcast-AT&T Order,17 FCC Rcd at 23255, ¶ 27.
  • Our competitive analysis, which forms an important part of the public interest evaluation, is informed by but not limited to traditional antitrust principles.See Sirius-XM Order, 23 FCC Rcd at 12365, ¶ 32; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3278, ¶ 24; Cingular-AT&T Wireless Order, 19 FCC Rcd at 21544-45, ¶ 42; News Corp.-Hughes Order, 19 FCC Rcd at 484, ¶ 17; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20575, ¶ 27; Application of GTE Corp., Transferor, and Bell Atlantic Corp., Transferee, for Consent to Transfer Control of Domestic and International Authorizations and Application to Transfer Control of a Submarine Landing License, Memorandum Opinion and Order, 15 FCC Rcd 14032, 14046, ¶ 23 (2000) (“Bell Atlantic-GTE Order”).
  • The Commission’s competitive analysis under the public interest standard is somewhat broader.  For example, the Commission considers whether a transaction will enhance, rather than merely preserve, existing competition, and often takes a more expansive view of potential and future competition in analyzing that issue. See Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 32; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3278-79, ¶ 25; Bell Atlantic-GTE Order, 15 FCC Rcd at 14047, ¶ 23; AT&T Corp., British Telecommunications, plc, VLT Co. L.L.C., Violet License Co. LLC, and TNV [Bahamas] Limited Applications for Grant of Section 214 Authority, Modification of Authorizations and Assignment of Licenses in Connections with the Proposed Joint Venture Between AT&T Corp. and British Telecommunications, plc, Memorandum Opinion and Order, 14 FCC Rcd 19140, 19147-48, ¶ 15 (1999) (“AT&T Corp.-British Telecom Order”); Comcast-AT&T Order, 17 FCC Rcd at 23256, ¶ 28.
  • Our analysis recognizes that a proposed transaction may have both beneficial and harmful consequences.  Our public interest authority enables us, where appropriate, to impose and enforce transaction-related conditions targeted to ensure that the public interest is served by the transaction. See Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 33; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3279, ¶ 26; Cingular-AT&T Wireless Order, 19 FCC Rcd at 21545-46, ¶ 43; see also Application of WorldCom, Inc. and MCI Communications Corporation for Transfer of Control of MCI Communications Corporation to WorldCom, Inc., Memorandum Opinion and Order, 13 FCC Rcd 18025, 18032, ¶ 10 (1998) (“WorldCom-MCI Order”) (stating that the Commission may attach conditions to the transfers).
  • Section 303(r) of the Act authorizes the Commission to prescribe restrictions or conditions, not inconsistent with the law, which may be necessary to carry out the provisions of the Act.47 U.S.C. § 303(r).  See Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 33; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3279, ¶ 26; Cingular-AT&T Wireless Order, 19 FCC Rcd at 21545, ¶ 43; WorldCom-MCI Order, 13 FCC Rcd at 18032, ¶ 10 (citing FCC v. Nat’l Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding broadcast-newspaper cross-ownership rules adopted pursuant to Section 303(r))); U.S. v. Southwestern Cable Co., 392 U.S. 157, 178 (1968) (holding that Section 303(r) permits the Commission to order a cable company not to carry broadcast signal beyond station’s primary market); United Video, Inc. v. FCC, 890 F.2d 1173, 1182-83 (D.C. Cir. 1989) (affirming syndicated exclusivity rules adopted pursuant to Section 303(r) authority).
  • Indeed, unlike the role of antitrust enforcement authorities, our public interest authority enables us to rely upon our extensive regulatory and enforcement experience to impose and enforce conditions to ensure that a transaction will yield overall public interest benefits. See, e.g., Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 33; Liberty Media-DIRECTV Order, 23 FCC Rcd at 3279, ¶ 26; Cingular-AT&T Wireless Order, 19 FCC Rcd at 21545, ¶ 43; News Corp.-Hughes Order, 19 FCC Rcd at 477, ¶ 5.
  • In exercising this broad authority, the Commission generally has imposed conditions to confirm specific benefits or remedy specific harms likely to arise from transactions and that are related to the Commission’s responsibilities under the Act and related statutes. See, e.g., Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 33.

Harms

  • Comcast-NBCU Order, 26 FCC Rcd ¶ 27 "With respect to competition, corporate mergers and acquisitions may give rise to concerns regarding increases in vertical integration and/or horizontal concentration, depending on the lines of business in which the firms are engaged, as well as other public interest-related concerns.  A vertical transaction involves firms and their suppliers, customers, or other sellers of complements. See Sirius-XM Order, 23 FCC Rcd at 12367, ¶ 36; Kip Viscusi, John M. Vernon and Joseph E. Harrington, Jr., Econ. of Reg. and Antitrust 192, 233 (3d ed. 2000) (“Viscusi et al.”).  A horizontal transaction involves firms that sell products or services that are substitutes to buyers.See Sirius-XM Order, 23 FCC Rcd at 12367, ¶ 36; News Corp.-Hughes Order, 19 FCC Rcd at 507, ¶ 69.  The same transaction can have both vertical and horizontal elements.  Both types of transactions can reduce competition among the firms participating in a relevant market, potentially leading to higher prices to buyers, a reduction in product quality, or a reduced likelihood of developing new, better, or cheaper products and services.See Sirius-XM Order, 23 FCC Rcd at 12367, ¶ 36; ABA Sec. of Antitrust Law, Antitrust Law Developments 327 (5th ed. 2002); see generally Viscusi et al.  Below, we analyze the potential harms to competition arising from both the vertical and horizontal aspects of the proposed transaction.  After analyzing the alleged competitive harms, we examine other alleged harms, including harms to over-the-air broadcasting, diversity, localism, journalistic independence, public interest programming, and employment.  Where we find substantial evidence supporting an alleged potential harm, we consider remedial measures—both those suggested by the Applicants and alternative or additional ones. "

Benefits

  • Comcast-NBCU Order, 26 FCC Rcd at 4331, ¶ 226 "In determining whether approval of a transaction is in the public interest, the Commission evaluates whether the transaction is likely to produce public interest benefits.  The Commission applies several criteria in deciding whether a claimed benefit should be considered and weighed against potential harms. 
  • First, the claimed benefit must be transaction specific.  That is, the claimed benefit must be likely to occur as a result of the transaction but unlikely to be realized by other practical means having fewer anticompetitive effects. 
  • Second, the claimed benefit must be verifiable.  The Applicants, who possess much of the information relating to the potential benefit of a transaction, are required to provide sufficient supporting evidence to permit us to verify the likelihood and magnitude of each claimed benefit. News Corp.-Hughes Order, 19 FCC Rcd at 610, ¶ 317; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20630, ¶¶ 189-90.  Benefits expected to occur only in the distant future are inherently more speculative than more immediate benefits. 
  • Third, the Commission calculates the magnitude of benefits net of the cost of achieving them. News Corp.-Hughes Order, 19 FCC Rcd at 610, ¶ 317; EchoStar-DIRECTV HDO, 17 FCC Rcd at 20630, ¶ 190. 
  • Fourth, the benefits must flow through to consumers, and not inure solely to the benefit of the company. Application of Western Wireless Corp. and ALLTEL Corp. for Consent to Transfer Control of Licenses and Authorizations, 20 FCC Rcd 13053, 13100, ¶ 132 (2005).
  • "The Commission applies a “sliding scale approach” to its ultimate evaluation of benefit claims.  Where potential harms appear both substantial and likely, the Applicants’ demonstration of claimed benefits must reveal a higher degree of magnitude and likelihood than the Commission would otherwise demand. News Corp.-Hughes Order, 19 FCC Rcd at 611, ¶ 318; Applications of Ameritech and SBC Communications for Consent to Transfer of Control of Licenses and Authorizations, 14 FCC Rcd 14712, 14825, ¶ 256 (1999)  On the other hand, where potential harms appear less likely and less substantial, we will accept a lesser showing. AT&T-Bel1South Order, 22 FCC Rcd at 5762, ¶ 203.

Conditions

FCC may prescribe restrictions or conditions to mergers 47 U.S.C. § 303(r). 

  • Comcast-NBCU Order, 26 FCC Rcd at 4249, ¶ 25
  • Sirius-XM Order, 23 FCC Rcd at 12366, ¶ 33
  • Liberty Media-DIRECTV Order, 23 FCC Rcd at 3279, ¶ 26
  • WorldCom-MCI Order, 13 FCC Rcd at 18032, ¶ 10 (citing FCC v. Nat’l Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding broadcast-newspaper cross-ownership rules adopted pursuant to Section 303(r)));
  • U.S. v. Southwestern Cable Co., 392 U.S. 157, 178 (1968) (holding that Section 303(r) permits the Commission to order a cable company not to carry broadcast signal beyond station’s primary market);
  • United Video, Inc. v. FCC, 890 F.2d 1173, 1182-83 (D.C. Cir. 1989) (affirming syndicated exclusivity rules adopted pursuant to Section 303(r) authority)
  • Application of WorldCom, Inc. and MCI Communications Corporation for Transfer of Control of MCI Communications Corporation to WorldCom, Inc., Memorandum Opinion and Order, 13 FCC Rcd 18025, 18032, ¶ 10 (1998) (“WorldCom-MCI Order”) (stating that the Commission may attach conditions to the transfers).

Law

Papers

Department of Justice

"The DOJ, however, reviews telecommunications mergers pursuant to Section 7 of the Clayton Act, and if it sues to enjoin a merger, it must demonstrate to a court that the merger may substantially lessen competition or tend to create a monopoly. The DOJ review is consequently limited solely to an examination of the competitive effects of the acquisition, without reference to diversity, localism, or other public interest considerations.

Antitrust Law

Derived From: FTC Staff Report 2007 p 120: The antitrust laws are grounded in the principle that competition - "that state of affairs in which output is maximized, price is minimized, and consumers are entitled to make their own choices"582 - serves to protect consumer welfare. This persistent focus on the consumer ensures that enforcement resources are directed at protecting consumers through the competitive process, not at protecting individual market players.

Vigorous competition on the merits by a single firm, such as the charging by such firm of a price that may be higher than would occur in a market with more competitors, does not by itself constitute anticompetitive conduct. As the Supreme Court noted recently in the Trinko583 case, the charging of monopoly prices by a lawful monopolist by itself "is not only not unlawful; it is an important element of the free market system."584 Thus, the antitrust laws do "not give judges carte blanche to insist that a monopolist alter its way of doing business whenever some other approach might yield greater competition."585 Empirical evidence and our enforcement experience confirm that competition itself can force changes on a market and erode monopoly profits. Indeed, it is the purpose of the antitrust laws to protect that competitive process.

Conduct that has the potential to be both anticompetitive and harmful to consumers, under certain conditions, and procompetitive and capable of improving efficiency, under other conditions, is analyzed under the "rule of reason" to determine the net effect of such conduct on consumer welfare.586 In contrast, conduct that is always or almost always harmful to consumers - such as collusion among horizontal competitors - generally is deemed per se illegal under the antitrust laws.587 As discussed in the following section, these principles apply to Internet-related markets in the same manner as they do to other markets in our economy.

Merger Review

  • Entry
  • Efficiencies

    Market Definition

    "DOJ and the Federal Trade Commission (“FTC”) Horizontal Merger Guidelines define the relevant product market as the smallest group of competing products for which a hypothetical monopoly provider of the products could profitably impose at least a “small but significant and non-transitory price increase,” presuming no change in the terms of sale of other products. U.S. Department of Justice and the Federal Trade Commission Horizontal Merger Guidelines, August 19, 2010, § 4.1.1 at 9 (“2010 DOJ/FTC Horizontal Merger Guidelines”). In other words, when one product is a reasonable substitute for the other in the eyes of a sufficiently large number of consumers, it is included in the relevant product market even though the products themselves are not identical. Thus, the relevant product market includes all products “reasonably interchangeable by consumers for the same purposes.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956); see also United States v. Microsoft Corp., 253 F.3d 34, 52 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 350 (2001) (“[T]he relevant market must include all products ‘reasonably interchangeable by consumers for the same purposes.’” (quoting E.I. du Pont de Nemours, 351 U.S. at 395))."

    • Product
      • Demand substitution: consumer’s willingness and ability to substitute (switching)
        • United States v. E.I. Du Pont de Nemours & Co (1995) (Du Pont had ~75% of cellophane market; court found that other packing materials were substitutes at prevailing market prices and therefore were substitutes - thus the market was larger than just cellophane)
      • Firm can be acting in multiple markets
    • Geographic
      • local, regional, national?
        • Staples / Office Depot Merger 1996: Market was local “the sale of consumable office supplies sold through office superstores” - excluded stores like Target or Walmart. Not substitutes.
        • Office Max / Office Depot 2013: merger not challenged. Market redefined to include online retail as well as Walmart

    Market Participants

    • Elements: Market Shares, Market Concentration (HHIs)

    Competitive Effects

    • Unilateral, Coordinated

    Market Power

    • “Market Power” is the ability of a firm or group of firms within a market to profitably charge prices above the competitive level for a sustained period of time. A merger enhances market power if it provides the merged entity (either unilaterally or in coordination with one or more other firms) to raise price, reduce output, diminish quality, innovate less, or otherwise harm the “public interest.”

    Law

    Caselaw

    Papers

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