Defining Remedy Success

This article discusses how to measure remedy success. Recent policy from U.S. antitrust agencies indicates potentially differing standards. The FTC’s 2017 remedy study applies a “restoring competition” standard, focusing on non-merging firms’ ability to compete. More recent commissioner statements suggest a “consumer welfare” standard, which includes benefits to the merging parties. DOJ remedy guidance potentially allows either standard. Economics research shows similarly varying approaches for including procompetitive benefits to the merged firm. This article describes the tension between the two standards and provides two recent examples (one horizontal, one vertical) of mergers that could satisfy one but fail the other. Given recent calls for more remedy retrospectives, we first must establish the foundation: How do we measure remedy success?

By David Osinski¹

I. INTRODUCTION

In the United States, the Federal Trade Commission (“FTC”) or the Antitrust Division of the Department of Justice (“DOJ”) may seek to block a merger deemed harmful to competition. Alternatively, the agencies and merging parties may agree to modify the transaction to remedy the competitive harm. These remedies are a common tool for merger policy. In fiscal years 2017 and 2018, forty-four of the eighty challenged mergers in the U.S. ended with remedies.² The success of merger remedies remains an ongoing topic of debate in antitrust po