Competition Matters

According to the Bureau’s Statement on Negotiating Merger Remedies, the goal of a structural merger remedy is to maintain or restore competition in the markets affected by the merger while allowing the parties to proceed with those parts of the merger that do not raise competitive concerns. Usually, this approach results in a Commission order to divest key assets or capabilities to a buyer that will become a new competitor in the market and that can maintain the competitive status quo.

In recent investigations of hospital mergers, the merging parties often make the argument that the acquired firm is flailing, if not outright failing. Thus, the argument goes, the transaction is necessary to keep the acquired hospital in operation. But courts have set stringent requirements for meeting the failing firm defense, and as set out in the Horizontal Merger Guidelines §11, a company can assert what is known as a “failing firm” defense only if

Some will remember 1976 as the year of the nation’s bicentennial, but it was also the year that Congress gave the antitrust agencies an important tool to prevent harmful mergers before the harm occurs and before the assets and operations of the merging parties are joined in a way that precludes effective relief after-the-fact. 

There is still time to submit public comments on the FTC’s proposal to study the effectiveness of its remedial orders in merger cases. Fifteen years have passed since the Bureau’s previous Divestiture Study, which resulted in a number of important findings that caused the Commission to refine its approach and improve its orders.

Yesterday, the Supreme Court affirmed the Fourth Circuit’s decision to uphold the FTC’s order against the North Carolina State Board of Dental Examiners In a tour-de-force opinion laying out the proper scope of the state action doctrine first articulated in Parker v.

Reminder: your appointment is coming up soon! Staff of the Federal Trade Commission and the U.S. Department of Justice Antitrust Division just posted the agenda for next week’s two-day health care workshop. One look, and you won’t need a second opinion – you definitely will want to attend.

Take a deep breath and hold it. Release. Now open your mouth and say, “aaahhh.”

Just as it is prudent to have your health examined regularly by professionals, we believe it is wise to periodically examine the competitive dynamics in the ever-evolving health care marketplace, a critical sector of the American economy.

As discussed in a previous blog post, trade association members are subject to the same antitrust rules of the road as other companies or individuals who happen to be competitors. That means no price fixing, bid rigging, customer allocation or market division allowed, because these types of agreements are so plainly harmful that courts have condemned them as per se violations of the antitrust laws.

This is the week for lists, so here’s one for competition watchers looking for something to read in between watching football games and reading other lists.  In addition to the many speeches by the Chairwoman and Commissioners on a wide variety of topics, here are some key FTC competition documents worth a second look from the year that was: