Competition Law Reading Room
Counterfactual analysis in merger cases: a reality check for the ACCC
(2011) 39 Australian Business Law Review 451
The note does not contain an abstract; the following is taken from the introductory section of this note:
'Merger regulation has always played a very important role in the overall scheme of competition policy. It is intended to prevent situations arising that will allow the merged entity to increase price regardless of the reactions of its competitors and customers (the exercise of unilateral market power), or to increase price because the merger makes tacit collusion possible for the first time, or makes existing tacit collusion more stable (the exercise of coordinated market power). ... The note examines the implications of Emmett J’s findings as regards the standard of proof required in the ACCC’s choice of a counterfactual for analysing whether a merger is likely to substantially lessen competition contrary to s 50 of the CCA.'
Corones concludes by noting that the outcome of the Metcash appeal (not delivered at time of writing) was 'keenly awaited by all concerned with merger regulation in Australia'.
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