Monopoly and Antitrust Policy
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two U.S. firms announce a merger or acquisition where at least one of the firms is above a minimum size of sales (a threshold that moves up gradually over time, and was at $76.3 million in 2015), or certain other conditions are met, they are required under law to notify the U.S. Federal Trade Commission (FTC). The left-hand panel of Figure 11.2 (a) shows the number of mergers submitted for review to the FTC each year from 2002 to 2015. Mergers follow the business cycle, falling after the 2001 recession, peaking in 2007 as the Great Recession struck, and then rising since 2009. The right-hand panel of Figure 11.2 (b) shows the distribution of those mergers submitted for review in 2015 as measured by the size of the transaction. It is important to remember that this total leaves out many small mergers under $50 million, which companies only need to report in certain limited circumstances. About a third of all reported merger and acquisition transactions in 2015 exceeded $500 million, while about 15 percent exceeded $1 billion.
Figure 11.2 Number and Size of Mergers (a) The number of mergers grew from 2003 to 2007, then fell dramatically during the 2008-2009 Great Recession, before recovering since. (b) In 2015, the greatest number of mergers submitted for review by the Federal Trade Commission was for transactions between $500 million and $1 billion.
The laws that give government the power to block certain mergers, and even in some cases to break up large firms into smaller ones, are called antitrust laws. Before a large merger happens, the antitrust regulators at the FTC and the U.S. Department of Justice can allow the merger, prohibit it, or allow it if certain conditions are met. One common condition is that the merger will be allowed if the firm agrees to sell off certain parts. For example, in 2006, Johnson & Johnson bought the Pfizer’s “consumer health” division, which included well-known brands like Listerine mouthwash and Sudafed cold medicine. As a condition of allowing the merger, Johnson & Johnson was required to sell off six brands to other firms, including Zantac® heartburn relief medication, Cortizone anti-itch cream, and Balmex diaper rash medication, to preserve a greater degree of competition in these markets.
The U.S. government approves most proposed mergers. In a market-oriented economy, firms have the freedom to make their own choices. Private firms generally have the freedom to:
• expand or reduce production
• set the price they choose
• open new factories or sales facilities or close them
• hire workers or to lay them off
• start selling new products or stop selling existing ones
If the owners want to acquire a firm or be acquired, or to merge with another firm, this decision is just one of many that firms are free to make. In these conditions, the managers of private firms will sometimes make mistakes. They may close down a factory which, it later turns out, would have been profitable. They may start selling a product that ends up losing money. A merger between two companies can sometimes lead to a clash of corporate personalities that makes both firms worse off. However, the fundamental belief behind a market-oriented economy is that firms, not governments, are in the best position to know if their actions will lead to attracting more customers or producing
Chapter 11 | Monopoly and Antitrust Policy 257
Government regulators agree that most mergers are beneficial to consumers. As the Federal Trade Commission has noted on its website (as of November, 2013): “Most mergers actually benefit competition and consumers by allowing firms to operate more efficiently.” At the same time, the FTC recognizes, “Some [mergers] are likely to lessen competition. That, in turn, can lead to higher prices, reduced availability of goods or services, lower quality of products, and less innovation. Some mergers create a concentrated market, while others enable a single firm to raise prices.” The challenge for the antitrust regulators at the FTC and the U.S. Department of Justice is to figure out when a merger may hinder competition. This decision involves both numerical tools and some judgments that are difficult to quantify. The following Clear It Up explains the origins of U.S. antitrust law.
What is U.S. antitrust law? In the closing decades of the 1800s, many industries in the U.S. economy were dominated by a single firm that had most of the sales for the entire country. Supporters of these large firms argued that they could take advantage of economies of scale and careful planning to provide consumers with products at low prices. However, critics pointed out that when competition was reduced, these firms were free to charge more and make permanently higher profits, and that without the goading of competition, it was not clear that they were as efficient or innovative as they could be.
In many cases, these large firms were organized in the legal form of a “trust,” in which a group of formerly independent firms were consolidated by mergers and purchases, and a group of “trustees” then ran the companies as if they were a single firm. Thus, when the U.S. government sought to limit the power of these trusts, it passed the Sherman Antitrust Act in 1890 – the nation’s first antitrust law. In an early demonstration of the law’s power, the U.S. Supreme Court in 1911 upheld the government’s right to break up Standard Oil, which had controlled about 90% of the country’s oil refining, into 34 independent firms, including Exxon, Mobil, Amoco, and Chevron. In 1914, the Clayton Antitrust Act outlawed mergers and acquisitions (where the outcome would be to “substantially lessen competition” in an industry), price discrimination (where different customers are charged different prices for the same product), and tied sales (where purchase of one product commits the buyer to purchase some other product). Also in 1914, the Federal Trade Commission (FTC) was created to define more specifically what competition was unfair. In 1950, the Celler-Kefauver Act extended the Clayton Act by restricting vertical and conglomerate mergers. A vertical merger occurs when two or more firms, operating at different levels within an industry’s supply chain, merge operations. A conglomerate merger is a merger between firms that are involved in totally unrelated business activities. In the twenty-first century, the FTC and the U.S. Department of Justice continue to enforce antitrust laws.
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