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Did the European Union's Market Dominance Policy Have a Gap? Evidence from Enforcement in the United States

The 1992 Department of Justice (DOJ)–Federal Trade Commission (FTC) Merger Guidelines introduced unilateral effects analysis to supplement or even supersede the standard collusion enforcement algorithm.1 A new approach to merger review, unilateral effects analysis generalised the classic two-to-one monopoly analysis and applied it to a broad set of situations in which the merged firm could substantially lessen competition without regard to its rival’s reactions. These unilateral effects models were expected to replace collusion analyses for a range of differentiated products markets and to offer a supplementary analysis for some homogeneous goods markets. The number of significant competitors evolved as the structural index, with mergers in industries with few competitive rivals likely to undergo antitrust review.2 The problem of tacit collusion in oligopolistic markets remained relevant, and the 1992 Guidelines introduced a more sophisticated methodology aimed at showing how tacit collusion could likely occur and persist in a post-merger world. Across the Atlantic, the European Union (EU) developed a community merger policy of its own, building on the established market dominance concept. Mergers were prohibited when the proposed transaction established or enhanced the merged firm’s dominant position. The exact definition of dominance was December 2009 European Competition Journal 655