The Federal Trade Commission held the thirteenth session of its Hearings Initiative, focused on the agency’s merger retrospective program, on April 12, 2019, at FTC Headquarters in Room 432.
This Hearing gathered information from experts to help guide the FTC’s future merger retrospective research program. The Hearing consisted of four sessions. In the first session, a panel summarized the findings of existing studies, then discussed the requirements for informative retrospective studies. The second session examined how the findings from merger retrospectives can be used to improve enforcement agencies’ prospective merger enforcement programs, including merger simulation tools and design of merger remedies. The third session was a panel discussion of how, or if, merger retrospectives can be used to evaluate and guide antitrust policy. In the final session, an expert panel discussed how the FTC should focus its resources on merger retrospectives in the near future.
The Commission invites public comment on these issues, including the questions listed below. Comments can be submitted online no later than 11:59 pm EDT, May 31, 2019.
Session 1: What have we learned from existing merger retrospectives?
- What are the requirements of successful merger retrospective studies, both in terms of data and in terms of the ability to reasonably compare actual merger outcomes with credible estimates of market outcomes that would have been realized absent the merger?
- Are there industries well- or poorly-suited to study using conventional merger retrospective techniques?
- What types of questions are merger retrospectives likely and unlikely to successfully address?
- Can merger retrospectives be used to measure merger-induced changes in quality, innovation, or investment?
Session 2: How can merger retrospectives be used to improve prospective merger analysis?
- A number of analytic and empirical tools have been developed to forecast the price impact of mergers. How can merger retrospectives be used to evaluate the efficacy of these tools? What does existing evidence from merger retrospectives tell us about the ability of these tools to forecast post-merger prices? What are good future avenues for research?
- Some retrospective analyses rely on both quantitative and qualitative data to evaluate past enforcement decisions. What kinds of questions can be addressed with qualitative data (e.g., customer surveys) that cannot be addressed with traditional quantitative analyses?
- What are the limitations on using merger retrospectives to evaluate enforcement tools? Are there certain types of economic models that cannot be evaluated with evidence from merger retrospectives? What weight should be placed on the findings from merger retrospectives?
Session 3: Should the findings from merger retrospectives influence horizontal merger policy and, if so, how?
- All merger retrospectives are case studies. Can the findings from these studies be generalized to inform policy? What are the limitations on applying findings from one industry to another?
- The set of existing retrospective studies is a selected, non-random sample from the population of all consummated mergers. Most studies have analyzed mergers drawn from a handful of industries (e.g., airlines, banking, hospitals, and petroleum). What, if any, inferences can be drawn from this literature about the industries that have not been studied?
- Merger retrospectives can only look at consummated mergers. It is not possible to observe how the mergers that were deterred might have affected market outcomes. How should these “deterred mergers” be included in an analysis of the efficacy of merger enforcement?
- Should merger restrospective studies influence case law? If so, are there particular topics where the courts could benefit from further empirical evidence?
Session 4: What should the FTC’s retrospective program be over the next decade?
- Are there specific mergers or industries that have not been studied where the FTC should focus its attention?
- Should the FTC use its subpoena power to collect information for merger retrospectives, and if so, what kinds of information should be gathered?
- Should the agency focus on measuring market outcomes in specific industries or, instead, focus its resources on evaluating the efficacy of the methodology used to investigate proposed mergers?
- Should the FTC increase its work with outside researchers to accelerate these research projects? How would this collaboration work best?
- Should the FTC conduct more research to evaluate its past enforcement actions even if that means reducing the resources devoted to prosecuting cases? How should the FTC make this tradeoff?
The FTC Hearings on Competition and Consumer Protection in the 21st Century will accommodate as many attendees as possible; however, admittance will be limited to seating availability. Reasonable accommodations for people with disabilities are available upon request. Request for accommodations should be submitted to Elizabeth Kraszewski via email at email@example.com or by phone at (202) 326-3087. Such requests should include a detailed description of the accommodation needed. Please allow at least five days advance notice for accommodation requests; last minute requests will be accepted but may not be possible to accommodate.