Accommodating Public Interest Considerations in Domestic Merger Control: Empirical Insights

In the wake of recent convergence initiatives, many countries now adopt a competition-based approach to merger control assessment. Given the emphasis that is placed on competition criteria in these assessments, the influence of wider ‘public interest’ criteria has become increasingly marginalised. Yet despite this marginalisation, many merger regimes continue to afford scope to public interest criteria – which poses a number of questions regarding the feasibility of further convergence internationally. This paper conducts an empirical study of 75 domestic merger regimes to draw two sets of insights. Firstly, the paper identifies the different means by which states have chosen to accommodate public interest criteria within their domestic merger laws. It finds that most states will: (i) treat the public interest as an ‘exception’ to a competition-based test or frame it within sector-specific policy, and (ii) assign decision-making powers to either a national competition authority or a politician. Secondly, the paper explores the socio-economic factors that may influence how a state choses to accommodate public interest criteria. Statistical analysis suggests that factors traditionally thought of as influential (such as economic development) have only a negligible correlation with the chosen method of accommodation. In contrast, the ‘effectiveness’ of domestic governance within a state appears to demonstrate a significant correlation with how states choose to frame public interest criteria within legislation.