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Empirical Analysis of the Assessment of Innovation Effects in U.S. Merger Cases

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Abstract

In merger policy it is still an open question how the negative effects of mergers on innovation should be assessed. In this empirical study all mergers that were challenged by the U.S. antitrust agencies FTC and DOJ between 1995 and 2008 were analyzed in regard to the question to what extent and how the agencies assessed the innovation effects of mergers. The study also contributes to the discussion about differences and convergence in the merger assessments of the two agencies FTC and DOJ. Our results show (1) that in one third of all challenged mergers also innovation concerns have been raised (with no significant differences between the agencies). (2) Despite the wide-spread rejection of the “innovation market approach” in the antitrust debate the agencies used more often an innovation-specific assessment approach that includes also innovation in the market definition than the traditional product market concept. (3) Overall, we found both significant similarities and differences as well as some convergence over time in regard to the specifics of the assessment of innovation effects of mergers between both agencies.

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Notes

  1. See for a critical discussion, e.g., Rapp (1995), Lang (1997), Morse (2001), Carlton and Gertner (2003), Davis (2003), Kent (2011); see for a more balanced perspective Katz and Shelanski (2007, 41–44), Carrier (2008), and Kern (2014).

  2. The respective public comments and records of the FTC/DOJ joint workshops can be found on: http://www.ftc.gov/news-events/events-calendar/2010/01/horizontal-merger-guidelines-review-project-0 (Aug. 14, 2014).

  3. See the “Annual Competition Enforcement Reports to Congress” of the agencies between the fiscal year 1995 and fiscal year 2008.

  4. See, e.g., Davis (2003), Morse (2001), Rubinfeld and Hoven (2001), Landman (1999), Katz and Shelanski (2007), Carrier (2008), Kern (2014).

  5. Whereas this paper presents the econometric results of our study, a broader discussion of these (and additional) results within the context of the theoretical and empirical knowledge about innovation effects of mergers and the recent discussion in U.S. antitrust policy can be found in Kerber and Kern (2014).

  6. See for the general discussion about dual antitrust enforcement and differences and convergence between both agencies Sokol (2010), Blumenthal (2013), and Barroso Gomes (2013). However the (in the literature) most discussed differences about remedies and the tests for preliminary injunctions between FTC and DOJ do not seem to play a direct role for the research question in our study about the assessment of innovation effects. See for this specific discussion Sokol (2010, 1076), Chubb (2011), and Strock (2012).

  7. See also Kovacic (2009) and as an overview about this discussion Sokol (2010, 1109–1118).

  8. See Sokol (2010) and First et al. (2012).

  9. Although we also analyzed the consent decrees in these mergers (e.g., in regard to remedies), the specific data we needed for this empirical study (market definition, concentration measures etc.) could only be gotten in a consistent way from the complaints of both agencies FTC and DOJ. We are aware that the phrasing of the complaints might not always indicate very well to what extent and how innovation was really assessed by the agencies, however it can be claimed that systematic differences in the phrasing of these (highly standardized) official documents reflect specific differences in the assessment approaches (and are not accidental). In our analysis of the differences between both agencies we will consider that the merger proceedings of FTC and DOJ differ, and therefore also the role of the complaints.

  10. Please note that we do not call these markets innovation markets, because they need not be identical with how the innovation market approach would define innovation markets.

  11. The decisive court decision Whole Foods in 2008 that is seen as leading to substantial differences between FTC and DOJ in regard to preliminary injunctions could not have influenced the merger reviews in our investigation period (1995–2008).

  12. According to the 2-digit ISIC/NACE, HITEC 0 encompasses “construction” (45), “sale, maintenance and repair of motor vehicles” (50), “retail trade, except of motor vehicles” (52), “hotels and restaurants” (55), “real estate activities” (70), “renting of machinery and equipment” (71), “public administration and defense” (75), “Education” (80), “health and social work” (85), “sewage and refuse disposal, sanitation and similar activities” (90), “activities of membership organizations n.e.c.” (91), “recreational, cultural and sporting activities” (92), “other service activities” (93), “private households with employed persons” (95), “extra-territorial organizations and bodies” (99).

  13. Thereby we avoided possible biases as a consequence of the usage of, e.g., firm primary codes and safeguarded that we assign each merger case the appropriate industry classification number (on a 4-digit level) from an antitrust perspective.

  14. As our left hand side variable INNOV_CASE is binary the application of OLS yields inefficient estimates. We therefore used probit models for all our regressions. We also used logit techniques and linear probability models in order to check for robustness. Overall, the results did not change qualitatively throughout the analysis in dependence of the respective method used.

  15. For a detailed overview see http://www.ftc.gov/enforcement/cases-proceedings (Aug. 14, 2014).

  16. See, e.g., The Boeing Company, File No. 001 0092, Docket No. C-3992.

  17. See, e.g., Svedala Industri AB/Metso Oyj Corp., FTC File No. 001-0186, Docket No. C-4024.

  18. In contrast to our analysis on the case level, carried out in the previous section, we were now able to use the R&D expenditures as a control variable for the innovativeness of an industry instead of the HITEC variables. Due to a significant number of transactions taking place in hardly innovative industries, we had the problem of missing data regarding the R&D expenditures on the case level.

  19. Again, we used the ISIC scheme on a 2-digit level and matched the corresponding relevant markets with the “STAN Indicators 2009” dataset of the OECD.

  20. It is worth noting that we also empirically tested our descriptive observations regarding the use of HHIs and market shares as traditional concentration measures and the use of non-quantitative concentration measures. However, we did not get any significant results with respect to the use of HHIs and market shares. But, we confirmed our descriptive results regarding the use of non-quantitative/vague concentration measures. The observation that the FTC uses this kind of concentration measure more often and that its use decreases from the first to the second period could both be confirmed at a 1 % significance level.

  21. See Arrow (1962), Loury (1979), Lee and Wilde (1980), Dasgupta and Stiglitz (1980), Reinganum (1989), Boone (2000, 2001), Aghion et al. (2005).

  22. See for evolutionary and diversity reasonings Metcalfe (1989), Nelson (1995), Farrell (2006), and Kerber (2011) with additional references.

  23. Ciba-Geigy Ltd., 123 F.T.C. 842, at 851 (1997).

  24. See, e.g., United States v. Halliburton Co., Civ. No. 98-2340 (D.D.C. complaint filed Sept. 29. 1998).

  25. See, e.g., The Upjohn, Co., 121F.T.C. 44 (1996); Glaxo plc, 119F.T.C. 815(1995); Ciba-Geigy Ltd., 123F.T.C. 842, at 851 (1997); Hoechst AG/Rhone-Poulenc S.A., Docket No. C-3919 (consent order issued January 18, 2000).

  26. See, e.g., United States v. Lockheed Martin Corp., Civ. No. 98-00731 (D.D.C. complaint filed March 23, 1998).

  27. Note that we also empirically tested for markets with vague reasonings. However, in these regressions we did not obtain any significant results. Hence, although the descriptive observations have suggested that the DOJ made less unspecific arguments than the FTC and that the share of vague claims of negative innovation effects is furthermore slightly falling in the second period, we did not find econometric evidence for these descriptive results.

  28. Note that we also tested for a possible interaction between the FTC and the D04-08 variables. However, the interaction term FTC*D04-08 was omitted due to collinearity.

  29. See also the empirical study of Park and Sonenshine (2012) from a slightly different perspective.

  30. Kovacic (2009).

References

  • Aghion P et al (2005) Competition and innovation: an inverted-U relationship. Q J Econ 120:701–728

    Google Scholar 

  • Arrow KJ (1962) Economic welfare and the allocation of resources to invention. In: Nelson RR (ed) The rate and direction of economic activity. Princeton University Press, p 609–626

  • Baker J, Shapiro C (2008) Reinvigorating horizontal merger enforcement. In: Pitofsky R (ed) How the Chicago school overshot the mark: the effect of conservative economic analysis on U.S. Antitrust, p. 235–291

  • Balto DA, Sher SA (2004) Refining the innovation focus: the FTC’s Genzyme decision. Antitrust 18(2):28–33

    Google Scholar 

  • Barroso Gomes M (2013) Administrative Adjudication in Antitrust: Still a Controversy? AAI Working Paper 13, available at http://www.antitrustinstitute.org/sites/default/files/AAIWorkingPaper1303_0.pdf. Aug. 14 2013

  • Blumenthal W (2013) Models for merging the US antitrust agencies. J Antitrust Enforcement 1:24–51

    Article  Google Scholar 

  • Boone J (2000) Competitive pressure: the effects on investments in product and process innovation. RAND J Econ 31:549–569

    Article  Google Scholar 

  • Boone J (2001) Intensity of competition and the incentive to innovate. Int J Ind Organ 19:705–726

    Article  Google Scholar 

  • Carlton DW, Gertner RH (2003) Intellectual property, antitrust and strategic behavior. In: Jaffe AB et al (eds) Innovation policy and the economy, Vol. 3. MIT Press, p 29–59

  • Carrier MA (2008) Two puzzles resolved: of the Schumpeter-Arrow stalemate and pharmaceutical markets’. Iowa Law Rev 93:393–450

    Google Scholar 

  • Chubb N (2011) Agency draw: how serious questions in merger review could lead to enhanced merger enforcement. George Mason Law Rev 18:533–580

    Google Scholar 

  • Dasgupta P, Stiglitz JE (1980) Uncertainty, industrial structure, and the speed of R&D. Bell J Econ 11:1–28

    Article  Google Scholar 

  • Davis RW (2003) Innovation markets and merger enforcement: current practice in perspective. Antitrust Law J 71:677–703

    Google Scholar 

  • DOJ/FTC (1995) Antitrust Guidelines for the Licensing of Intellectual Property (Apr. 6, 1995), available at http://www.justice.gov/atr/public/guidelines/0558.htm#t323. Oct. 24 2013

  • DOJ/FTC (2010) Horizontal merger guidelines (August 19, 2010)

  • EU Commission (2004) Guidelines on the assessment of horizontal mergers, OJ (2004) / C 31/03

  • Farrell J (2006) Complexity, diversity, and antitrust. Antitrust Bull 51:165–173

    Google Scholar 

  • Feng K (2012) Patent-related mergers and market definition under the 2010 horizontal merger guidelines: the need to consider technology and innovation markets. T Jefferson Law Rev 34:197–224

    Google Scholar 

  • First H, Fox EM, Hemli DE (2012) Procedural and institutional norms in antitrust enforcement: the U.S. system. New York University Law and Economics Working Papers 303

  • Gilbert RJ (2008a) Competition and innovation. In: Collins WD (ed) Issues in competition law and policy 1. American Bar Association, Chicago, Antitrust Section, p 577–600

  • Gilbert RJ (2008b) Innovation markets after Genzyme/Novazyme, GCP The Online Magazine For Global Competition Policy (January 2008), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1020&context=richard_gilbert. Aug. 07, 2013

  • Gilbert RJ, Sunshine SC (1995) Incorporating dynamic efficiency concerns in merger analysis: the use of innovation markets. Antitrust Law J 63:569–601

    Google Scholar 

  • Gilbert RJ, Tom WK (2001) Is innovation king at the antitrust agencies?: the intellectual property guidelines five years later. Antitrust Law J 69:43–86

    Google Scholar 

  • Katz ML, Shelanski HA (2007) Mergers and innovation. Antitrust Law J 74:1–85

    Google Scholar 

  • Kent B (2011) Innovation market theory and practice: an analysis and proposal for reform. Compet Policy Int 7:159–189

    Google Scholar 

  • Kerber W (2011) Competition, innovation and maintaining diversity through competition law. In: Drexl J et al (eds) Economic approaches to competition law: foundations and limitations. Edward Elgar, p 173–201

  • Kerber W, Kern BR (2014) Assessing innovation effects in US merger policy: theory, practice, recent discussions, and perspectives. Mimeo

  • Kern BR (2014) Innovation markets, future markets, or potential competition: how should competition authorities account for innovation competition in merger reviews? World Compet: Law Econ Rev 37:178–206

    Google Scholar 

  • Kovacic W (2009) Assessing the quality of competition law: the case of horizontal merger enforcement. Compet Policy Int 5:129–150

    Google Scholar 

  • Landman LB (1999) Innovation and the structure of competition: future markets in European and American law’, Part I-III. J Patent Trademark Off Soc 81:728–881

    Google Scholar 

  • Lang JT (1997) European community antitrust law: innovation markets and high technology industries. Fordham Int Law J 20:717

    Google Scholar 

  • Lee T, Wilde LL (1980) Market structure and innovation: a reformulation. Q J Econ 94:429–436

    Article  Google Scholar 

  • Loury GC (1979) Market structure and innovation. Q J Econ 93:395–410

    Article  Google Scholar 

  • Memorandum of Agreement Between the Federal Trade Commission and the Antitrust Division of the United States Department of Justice Concerning Clearance Procedures for Investigations (March 2002), available at http://www.justice.gov/atr/public/10170.htm. Aug. 14 2014

  • Metcalfe SJ (1989) Evolution and economic change. In: Silbertson A (ed) Technology and economic progress. Macmillan, London, pp 54–85

    Chapter  Google Scholar 

  • Morse HM (2001) The limits of innovation markets. Antitrust Intellect Prop 2:22–35

    Google Scholar 

  • Muris TJ (2004) Statement of Chairman Timothy J. Muris in the matter of Genzyme/Novazyme Pharmaceuticals, Inc., File No. 021-0026, available at http://www.ftc.gov/system/files/attachments/press-releases/ftc-closes-its-investigation-genzyme-corporations-2001-acquisition-novazyme-pharmaceuticals-inc./murisgenzymestmt.pdf. Aug. 14 2014

  • Nelson RR (1995) Recent evolutionary theorizing about economic change. J Econ Lit 33:48–90

    Google Scholar 

  • Park WG, Sonenshine R (2012) Impact of horizontal mergers on research and development and patenting: evidence from merger challenges in the U.S. J Ind Compet Trade 12:143–167

    Article  Google Scholar 

  • Peneder M (2010) Technological regimes and the variety of innovation behaviour: creating integrated taxonomies of firms and sectors. Res Policy 39:323–334

    Article  Google Scholar 

  • Rapp RT (1995) The misapplication of the innovation market approach to merger analysis. Antitrust Law J 64:19–47

    Google Scholar 

  • Reinganum JF (1989) The timing of innovation: research, development, and diffusion. Handb Ind Org 1:849–908

    Google Scholar 

  • Rosch JT (2009) Antitrust regulation of innovation markets. Remarks of J. Thomas Rosch, Commissioner, Federal Trade Commission, ABA Antitrust Intellectual Property Conference, Berkeley CA, February 5, 2009

  • Rubinfeld DL, Hoven J (2001) Innovation and antitrust enforcement. In: Ellig J (ed) Dynamic competition and public policy: technology, innovation, and antitrust issues. Cambridge University Press, Cambridge, pp 65–94

    Chapter  Google Scholar 

  • Sokol D (2010) Antitrust, institutions, and merger control. George Mason Law Rev 17:1055–1148

    Google Scholar 

  • Strock JC (2012) Setting the terms of a break-up: the convergence of federal remedy policies. William Mary Law Rev 53:2147–2179

    Google Scholar 

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Acknowledgments

For valuable comments and suggestions we thank two anonymous reviewers and the discussants and participants of the 31st Annual Conference of the European Association of Law and Economics (EALE) (Sept. 18–20, 2014, Aix-en-Provence) and the Fourth MaCCI Annual Conference (March 12–13, 2015, Mannheim).

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Authors and Affiliations

  1. School of Business and Economics, Marburg Centre of Institutional Economics, Philipps-University Marburg, Marburg, Germany

    Benjamin R. Kern & Wolfgang Kerber

  2. Department of Economics and Social Sciences, Helmut Schmidt University Hamburg, Hamburg, Germany

    Ralf Dewenter

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  1. Benjamin R. Kern
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Correspondence to Wolfgang Kerber.

Appendix

Appendix

Table 10 The sectoral taxonomies
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Table 11 Variables description
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Table 12 Marginal effects of Table 2
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Table 13 Marginal effects of Table 4
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Table 14 Marginal effects of Table 6
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Table 15 Marginal effects of Table 8
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Table 16 Marginal effects of Table 9
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Kern, B.R., Dewenter, R. & Kerber, W. Empirical Analysis of the Assessment of Innovation Effects in U.S. Merger Cases. J Ind Compet Trade 16, 373–402 (2016). https://doi.org/10.1007/s10842-016-0225-0

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