Ex-post Assessment of Merger Remedies – KOVACIC – December 2023 OECD discussion
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This presentation by William E. Kovacic, Global Competition Professor of Law and Policy and Director, Competition Law Center, The George Washington University, was made during the discussion “Ex-post Assessment of Merger Remedies” held at the 22nd meeting of the OECD Global Forum on Competition on 8 December 2023. More papers and presentations on the topic can be found out at oe.cd/eamr. This presentation was uploaded with the author’s consent.
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Ex-post Assessment of Merger Remedies – KOVACIC – December 2023 OECD discussion
- 1. Ex Post Evaluation of Merger Enforcement Policy William E. Kovacic George Washington University OECD Global Forum on Competition December 8, 2023
- 2. Today’s Agenda • Reasons for Ex Post Evaluation • Methodologies • Contact: wkovacic@law.gwu.edu
- 3. Ex Post Merger Evaluation Why Do It?
- 4. Uncertainty • Inherently Predictive Exercise • Experimentation • Feedback Loop
- 5. Better Diagnosis of Effects • Theories of Harm • Predictive Factors • Sectoral Knowledge
- 6. Better Process • Information Requests • Internal Agency Quality Control • Agency Capabilities • Interagency Cooperation • Case Presentation • Institutional Memory
- 7. Better Remedial Design • Structural Relief (Divestitures) • Conduct Controls • Hybrids (e.g., IP Licensing) • Monitoring Mechanisms
- 8. Agency Behavioral Insights • Impact of the Queue –Boeing/McDonnell Douglas –Heinz (baby food) • Winning and Losing Streaks
- 9. Legitimacy Before Elected Officials • Evaluation Helps Reconcile –Autonomy –Accountability
- 10. Credibility Before Courts • Source of Deference –Expertise • Trust
- 11. Ex Post Merger Evaluation How to Do It?
- 12. Compare Priors and Actuals • Document Assumptions –E.g., entry • Compare Actual Experience • Requires Honest Documentation
- 13. Examine Process • Information Demands • Adversary Team Testing • Remedy Formulation • Monitoring • Integration of Past Learning
- 14. Measurement of Effects • Immediate Transaction –Price, quality, innovation, other performance criteria • Deterrence
- 15. Case Studies/Reconstructions • Decision to Prosecute • Case Resolution • Remedy Implementation • Agencies, Parties, Courts • Example: Google/Doubleclick
- 16. Ex Post Merger Evaluation Why It Can Be Hard to Do
- 17. Obstacles • Methodology Difficulties • Cost • New Matter Imperative • Boomerangs