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Welfare Standards, Substantive Tests, And Efficiency Considerations In Merger Policy: Defining The Efficiency Defense

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  • An Renckens

Abstract

For several years already, the efficiency defense (and its incorporation in the law) has been a much debated issue in merger policy. When discussing the introduction of an efficiency defense in merger control, it is important to define clearly its content and interpretation. However, different approaches to the concept of efficiency defense exist in the literature, and it is not always clear which jurisdictions apply an efficiency defense. Therefore, to improve communication and comparison between jurisdictions, it would be useful to reach agreement on the exact content of an efficiency defense. This paper proposes to define the efficiency defense along two dimensions: a conceptual one—related to the welfare standard—and a procedural one—related to the application of the substantive test. The main conclusion of this paper is that the concept of efficiency defense can only be appropriately applied under a total welfare standard and if efficiencies can be directly balanced against the anticompetitive effects of mergers on a case-by-case basis. Using this definition, only in Canada and Australia (formal review process) would an efficiency defense exist.

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  • An Renckens, 2007. "Welfare Standards, Substantive Tests, And Efficiency Considerations In Merger Policy: Defining The Efficiency Defense," Journal of Competition Law and Economics, Oxford University Press, vol. 3(2), pages 149-179.
    • Handle: RePEc:oup:jcomle:v:3:y:2007:i:2:p:149-179.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhm007
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    Cited by:

    1. Andreea Cosnita-Langlais, 2016. "Enforcement of Merger Control. Theoretical Insights for Its Procedural Design," Revue économique, Presses de Sciences-Po, vol. 67(HS1), pages 39-51.
    2. Katalin Katona & Marcel Canoy, 2013. "Welfare standards in hospital mergers," The European Journal of Health Economics, Springer;Deutsche Gesellschaft für Gesundheitsökonomie (DGGÖ), vol. 14(4), pages 573-586, August.
    3. Dzmitry Bartalevich, 2017. "EU competition policy and U.S. antitrust: a comparative analysis," European Journal of Law and Economics, Springer, vol. 44(1), pages 91-112, August.
    4. Cassey LEE, 2015. "The Objectives of Competition Law," Working Papers DP-2015-54, Economic Research Institute for ASEAN and East Asia (ERIA).
    5. Hüschelrath, Kai, 2009. "Methodologische Grundlagen einer Evaluation von Wettbewerbspolitik," ZEW Discussion Papers 09-084, ZEW - Leibniz Centre for European Economic Research.
    6. Kamerbeek, S.P., 2009. "Merger Performance and Efficiencies in Horizontal Merger Policy in the US and the EU," MPRA Paper 18064, University Library of Munich, Germany.
    7. Pingping Shan & Guofu Tan & Simon Wilkie & Michael Williams, 2012. "China’s Anti-Monopoly Law: What is the Welfare Standard?," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 41(1), pages 31-52, August.
    8. Katona, Katalin, 2019. "Managed competition in practice : Lessons for healthcare policy," Other publications TiSEM 2c2dd13d-91a8-4706-b705-9, Tilburg University, School of Economics and Management.
    9. Samuel Rutz, 2013. "Applying the Theory of Small Economies and Competition Policy: The Case of Switzerland," Journal of Industry, Competition and Trade, Springer, vol. 13(2), pages 255-272, June.

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