Economics and the Interpretation and Application of U. S. and E. U. Antitrust Law: Volume II Economics-Based Legal Analyses of Mergers, Vertical Practices, and Joint Ventures

Volume 2 uses the economic and legal concepts/theories of Volume 1 to (1) analyze the U.S. and E.U. antitrust legality of mergers, joint ventures, and the pricing-technique and contractual/sales-policy distributor-control surrogates for vertical integration and (2) assess related positions of scholars and U.S. and E.U. antitrust officials. Its analysis of horizontal mergers (1) delineates non-market-oriented protocols for determining whether they manifest specific anticompetitive intent, would lessen competition, or are rendered lawful by the efficiencies they would generate, (2) criticizes the U.S. courts' traditional market-share/market-concentration protocol, the HHI-oriented protocols of the 1992 U.S. DOJ/FTC Guidelines and the European Commission (EC) Guidelines, and the various non-market-oriented protocols the DOJ/FTC have increasingly been using, (3) argues that, although the 2010 U.S. Guidelines and DOJ/FTC officials discuss market definition as if it matters, those Guidelines actually reject market-oriented approaches, and (4) reviews the relevant U.S. and E.U. case-law. Its analysis of conglomerate mergers (1) shows that they can perform the same legitimate and competition-increasing functions as horizontal mergers and can yield illegitimate profits and lessen competition by increasing contrived oligopolistic pricing and retaliation barriers to investment, (2) analyzes the determinants of all these effects, and (3) assesses limit-price theory, the toe-hold-merger doctrine, and U.S. and E.U. case-law. Its analysis of vertical conduct (1) examines the legitimate functions of each type of such conduct, (2) delineates the conditions under which each manifests specific anticompetitive intent and/or lessens competition, and (3) assesses related U.S. and E.U. case-law and DOJ/FTC and EC positions. Its analysis of joint ventures (1) explains that they violate U.S. law only when they manifest specific anticompetitive intent while they violate E.U. law either for this reason or because they lessen competition, (2) discusses the meaning of an {esc}(3z{esc}(Bancillary restraint{esc}(3y{esc}(B and demonstrates that whether a joint-venture agreement would be illegal if it imposed no restraints and whether any restraints imposed are ancillary can be determined only through case-by-case analysis, (3) explains why scholars and officials overestimate the economic efficiency of R & D joint ventures, and (4) discusses related U.S. and E.U. case-law and DOJ/FTC and EC positions. The study's Conclusion (1) reviews how its analyses justify its innovative conceptual systems and (2) compares U.S. and E.U. antitrust law as written and as applied Volume (1) defines the specific-anticompetitive-intent, lessening-competition, distorting-competition, and exploitative-abuse tests of illegality promulgated by U.S. and/or E.U. antitrust law, (2) compares the efficiency defenses promulgated by U.S. and E.U. antitrust law, (3) compares the conduct-coverage of the various U.S. and E.U. antitrust laws, (4) defines price competition and quality-or-variety-increasing-investment (QV-investment) competition and explains why they should be analyzed separately, (5) defines the components of individualized-pricing and across-the-board-pricing sellers price minus marginal cost gaps and analyses eachs determinants, (6) defines the determinants of the intensity of QV-investment competition and explains how they determine that intensity, (7) demonstrates that definitions of both classical and antitrust markets are inevitably arbitrary, not just at their periphery but comprehensively, (8) criticizes the various protocols for market definition recommended/used by scholars, the U.S. antitrust agencies, the European Commission, and U.S. and E.U. courts, (9) explains that a firms economic (market) power or dominance depends on its power over both price and QV investment and demonstrates that, even if markets could be defined non-arbitrarily, a firms economic power could not be predicted from its market share, (10) articulates a definition of oligopolistic conduct that some economists have implicitly usedconduct whose perpetrator-perceived ex ante profitability depended critically on the perpetrators belief that its rivals responses would be affected by their belief that it could react to their responses, distinguishes two types of such conductcontrived and naturalby whether it entails anticompetitive threats and/or offers, explains why this distinction is critical under U.S. but not E.U. antitrust law, analyzes the profitability of each kind of oligopolistic conduct, examines these analyses implications for eachs antitrust legality, and criticizes related U.S. and E.U. case-law and doctrine and scholarly positions (e.g., on the evidence that establishes the illegal oligopolistic character of pricing), and (11) executes parallel analyses of predatory conduct--e.g., criticizes various arguments for the inevitable unprofitability of predatory pricing, the various tests that economists/U.S. courts advocate using/use to determine whether pricing is predatory, and two analyses by economists of the conditions under which QV investment and systems rivalry are predatory and examines the conditions under which production-process research, plant-modernization, and long-term full-requirements contracts are predatory Front Matter....Pages i-xxiv Chapter 12 Horizontal Mergers and Acquisitions....Pages 1-182 Chapter 13 Conglomerate Mergers and Acquisitions....Pages 183-249 Chapter 14 Vertical Mergers and the Pricing-Techniques, Contract-of-Sale Provisions, and Sales/Consignment Policies That Are Surrogates for Vertical Integration....Pages 251-531 Chapter 15 Joint Ventures and Other Types of Functionally-Analogous Collaborative Arrangements....Pages 533-614 Back Matter....Pages 615-705