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Let me say something about the agencies’ seemingly high “win rate” in merger challenges over the past 20 years, which is central to Jan’s claim here that merger standards are just fine thanks.
A quick thread. https://twitter.com/jmrybnicek/status/1360292111250321412
A quick thread. https://twitter.com/jmrybnicek/status/1360292111250321412
Antitrust advocates have identified a weakness in merger laws relating to vertical or conglomerate mergers. So stating the overall win rate, which includes challenges to horizontal deals that are relatively easier to attack under the current standards, is a bit misleading.
But even including horizontal cases, a high win rate could indicate that the agencies only challenged cases that they believed they could win under the impossibly high standards. This is thesis of @eisingerj’s Chicken Shit Club. The cases NOT being brought should concern us.
Kwoka (2015) showed FTC reduced enforcement between 1996 and 2008, with actions effectively dropping to zero in moderately concentration industries. Again, the government’s “win rate” isn’t capturing this abandonment of challenges.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2947814
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2947814
Tech platforms made hundreds of vertical acquisitions over the past 20 years, most of which were unchallenged because of the standards. @amyklobuchar's bill goes a long a way towards slowing down these deals by shifting burdens. Again not captured in the allegedly high win rate.
(Every minute we talk about slowing down mergers by dominant platforms is a minute not talking about *unilateral* anticompetitive conduct by the platforms that defies antitrust scrutiny and this upsets me dearly. But I digress.)
Finally, I know Jan understands this selection stuff, and how it could inflate the agencies' win rate. The nature of short op-eds requires writers (myself included) to stick with top-line talking points. Would be good for him to take this on in a different venue.
End rant.
End rant.
