Recent mergers have prompted regulators and courts to consider how best to analyze the potential competitive effects arising from increased buyer power created by a merger. Agencies, judges, and antitrust commentators have taken different approaches to buyer power issues in this quickly-developing landscape. Steptoe partner Jonathan Sallet explores these perspectives in his article “Buyer Power in Recent Merger Reviews.” Sallet frames the discussion by highlighting tension between the analyses of recent mergers before the FTC and DOJ.
The article also raises key antitrust questions for companies that may potentially augment their buying power through combination: Can buyer power not rising to monopsony still trigger the presumption under Philadelphia National Bank that would establish a prima facie case against the merger? What types of procompetitive justifications may merging parties invoke in favor of their merger? What effects on downstream consumers may be, and which effects may need to be, considered when analyzing the merger’s competitive effects? Sallet reviews the agencies’ recent approaches to these issues and provides insights into questions that are sure to arise in future merger reviews for which increased buyer power is a concern.