This Article examines economic efficiencies analysis in the merger review processes of Canada, the European Community, and the United States. In recent years, legal counsel, academics, and policymakers have given greater attention to international harmonization and convergence of competition and antitrust law and policy. This trend has been spurred by the increasing acceptance of efficiency-based economics in competition policy generally and in merger policy particularly. The author, nevertheless, asks whether efficiency-based merger analysis also may create new jurisdictional conflicts among national merger enforcement authorities. For instance, a state concerned with its own domestic competitiveness might emphasize domestic efficiency gains in approving a merger that otherwise create market power concerns in an internationalor global market. This approach could result from an attempt to weigh the domestic efficiency gains against the increase of the merged firm's domestic market power. This Article inquires whether such a merger should be regarded differently from an attempt by a state to cartelize a domestic market, either to export into the international or global market or to foreclose foreign penetration of the domestic market. After reviewing the economic analysts of efficiencies, the empirical evidence from completed mergers, and the laws of the three jurisdictions, the author: (i) proposes a two-step framework for analyzing efficiencies; and (ii) concludes that the best means of reducing potential conflicts would be to have merger reviews conducted by an international competition authority.
Mark A.A. Warner,
Efficiencies and Merger Review in Canada, the European Community, and the United States,
26 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol26/iss5/2