Tuesday, September 24, 2013

Ukraine Upgraded to Category 1

The FAA announced last week that a July review found the Ukraine's civil aviation authority to be compliant with ICAO's safety oversight standards and practices, earning the country an upgrade under the FAA's International Aviation Safety Assessment program. Ukraine, which had been classifed as Category 2 since 2005, has been granted Category 1 status. Ukraine does not currently offer service to the United States.

September 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

F.A.A. Expected to Revise Portable Electronic Device Policy

The New York Times reports that an F.A.A. aviation rulemaking committee is expected to formulate rule changes later this week that would allow passengers to use electronic devices such as e-readers and tablets during takeoff and landing. Restrictions are likely to remain in place on cell phone and Wi-Fi use. A brief explanation of the current policy can be found here.



September 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Principato to Present Third Annual IALI/Chaddick Lecture

Greg Principato, past president of Airports Council International-North America, will present at the International Aviation Law Institute (IALI) and Chaddick Institute for Metropolitan Development's third annual lecture on October 21 at DePaul University. The title of his speech will be "Trouble on the Tarmac: Redirecting U.S. Aviation Policy to Promote Economic Growth."

Principato served eight years as president of Airports Council International-North America, before stepping down in June 2013. During his 30 plus-year career, he worked on a wide variety of aviation issues. His many achievements include serving as executive director of the 1993 National Airline Commission, helping negotiate a new air service agreement between the United States and Japan, working to develop a new global standard for aircraft noise, and helping negotiate an international airline alliance.

Each year, IALI and Chaddick invite an expert in national aviation policy and advocacy to discuss the role of commercial airports and their impact on U.S. cities and the national transportation network. Past presenters include Christa Fornarotto, the Federal Aviation Administration’s associate administrator for airports, and Professor John Kasarda, author of the book Aerotropolis: The Way We’ll Live Next.

Attendance is by invitation only. For more information, please contact IALI Executive Director Stephen B. Rudolph.

September 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

New Filings in US/AMR Merger Case

Late last week the Department of Justice filed an amended complaint against the proposed merger of US Airways and American Airlines. The two carriers have submitted their responses, which are available through the always excellent Airline Biz Blog at Dallas Morning News. Airline Biz Blog is also reporting that the two carriers are seeking to push back the original December 17 date by which they had planned to complete the merger. We'll have more detailed thoughts on the contents of these latest filings later in the week.

September 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Russia, Kyrgyzstan Agree to Add Frequencies

According to ATW Online (subscription only), Russia and Kyrgyzstan are working on an amended bilateral air services agreement that would increase the number of weekly frequencies permitted on flights between Moscow and the Kyrgyz cities of Bishkek and Osh. The new agreement will also reportedly include additional rights for air cargo carriers. 

September 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

EU Likely to Limit ETS Scope

The reports coming out of yesterday's ICAO Council meeting have been far from conclusive about what to expect with regard to an emissions resolution at the upcoming Assembly session. The most significant development is that the EU has indicated it will amend regulation 101/2008 to only apply to emissions generated in the airspace of EU Member States. This concession is reportedly conditional on the Assembly committing to having a global emissions plan in place by the 2016 Assembly, but it is probably safe to assume that the change will happen. The Assembly will produce some kind of resolution, though the details appear to remain very much up in the air at this late date. The best indications are that there will be some kind of pledge to adopt a plan at the 2016 Assembly meeting that would go into effect in 2020, but the details of that plan will be left open for future discussion. The EU wants the Assembly to commit to a plan that includes marked based measures, while some in the industry are still holding out hope that ICAO representatives refrain from endorsing anything stronger than a scheme involving carbon offsets.

September 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

Conflicting Reports on Emissions Standoff Before ICAO Meetings

Bloomberg and Reuters published dueling stories yesterday on the status of emissions talks going into tomorrow's ICAO Council meeting and the triennial assembly later this month. The quotes within the two articles displayed varying levels of optimism regarding what ICAO will be able to accomplish. There were also indications that the EU is willing to permanently amend its emissions trading policies to apply only to Member States' airspace. Hopefully we will know more by the end of tomorrow.

September 3, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

Labor Day Weekend Links

Here's what you should know before beginning your three-day weekend:

  • A November 25 trial date has been set for the antitrust challenge to the American/US Airways merger. 
  • More good news for American Airlines: the judge overseeing the carrier's bankruptcy appears willing to confirm its reorganization plan before the antitrust challenge is resolved.
  • The U.S. Department of Transportation has released a show-cause order supporting antitrust immunity for the Delta/Virgin Atlantic joint venture.
  • ICAO has rescinded India's significant safety concern designation.
  • Chilean carrier LAN won a legal dispute with the Argentinian government over use of an airport.

August 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 29, 2013

More Reading on Coordinated Effects, Mavericks and the AMR/US Merger

As an addendum to my earlier posts on the concepts of coordinated effects and mavericks as applied to the DOJ's challenge to the American/US merger, I wanted to pass along a 2002 speech by former U.S. Department of Justice Antitrust Division Deputy Assistant Attorney General William J. Kolasky entitled Coordinated Effects in Merger Review: From Dead Frenchmen to Beautiful Minds and Mavericks. The speech provides an excellent overview of both concepts and, though its more than a decade old, it sheds some light on how coordinated effects have been viewed within the agency.

August 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 28, 2013

New Zealand Aggressively Pursuing Open Skies Agreements

CAPA Centre for Aviation posted a very helpful article yesterday describing the extent to which New Zealand has worked to implement its new air transportation policy emphasizing an expansion of open skies agreements, even in cases where the liberalization of traffic rights has not been reciprocal.

August 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

All Nippon Becomes First Foreign Carrier to Invest in Myanmar Market

Japanese carrier All Nippon Airways has announced plans to purchase a 49 percent stake in Myanmar-based Asian Wings Airways. It is the first investment in a Myanmar-based carrier by a foreign airline. Asian Wings has been a purely domestic carrier to date, but is scheduled to begin international operations later this year.

August 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

DOJ, Carriers Commence Antitrust Showdown by Arguing Over Trial Date

Welcome to the redesigned blog! I hope everyone likes the new look.

The top end-of-week story is that American Airlines and US Airways have filed a motion requesting a November 12 start date for their antitrust trial. This is three months earlier than the February start date the DOJ would prefer. The disagreement isn't trivial, as American cannot resolve its bankruptcy proceedings without first settling the merger question. The DOJ, by contrast, wants more time to prepare its arguments. 


August 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

Airline Merger Reading

For those still struggling to understand the DOJ's surprising decision last week to challenge the proposed American/US Airways merger, I'd recommend two white papers from Diana Moss of the American Antitrust Institute. The arguments therein appear to be largely in line with the DOJ's thinking. The titles (with links to ssrn pages) and abstracts are below:

Airline Mergers at a Crossroads: Southwest Airlines and Airtran Airways

The proposed merger of Southwest/AirTran could meet with relatively little antitrust enforcement resistance based on the Department of Justice’s (DOJ) public statements in recent airline mergers. For example, claimed efficiencies are likely to get significant weight. Moreover, concerns over eliminating competition on Southwest/AirTran overlap routes could be mitigated because the number of routes is relatively small, there is rivalry (from low-cost carriers (LCCs) and legacies) on some of those routes, and entry may be relatively easy at some affected airports.

However, the proposed merger of Southwest and AirTran – the first major merger of LCCs – raises novel issues that may not be captured by analysis that focuses mainly on overlaps between the merging partners in city-pair or airport-pair markets. These novel issues include how the merger could potentially result in: (1) a transition from a point-to- point/hybrid system to a hub-and-spoke network model; (2) changes in the two LCCs’ price discounting strategies; (3) changes in entry or expansion patterns in new and existing markets; and (4) changes in short-term output and/or longer-term capacity decisions. These questions deserve attention in an antitrust review of the proposed merger.

For example, combining the Southwest and AirTran systems may stretch the limits of Southwest’s model, pushing the merged company away from a point-to-point or hybrid system and more toward a hub-and-spoke model. If so, then the combined company may be less able to inject the competitive discipline through lower fares, more choice, and entry and expansion than each LCC alone has brought to the industry. With the ranks of the LCCs reduced through a Southwest/AirTran merger, it is also important to consider how effective the rivalry offered by the remaining LCCs will be.

Eliminating AirTran also means removing from the market the second largest LCC (based on its presence as a low fare carrier on top routes) and the source of some of the most aggressive price discounting and market entry. Combining the maverick-like AirTran with Southwest could change incentives for the merged company to discount. And because Southwest and AirTran, as LCCs, are closer competitors to each other than to the legacy airlines, potential post-merger price increases (or smaller discounts) may not be captured by standard market share and concentration analysis.

Finally, post-merger output restrictions and/or capacity reductions are demonstrated effects of airline mergers that have been largely overlooked in antitrust reviews. Not only do they raise fares, but they reduce choice for consumers. Well-publicized cutbacks at Cincinnati after Delta/Northwest and conditions imposed on United/Continental at Cleveland by the state of Ohio indicate the gravity of these effects. Mergers of LCCs should be no exception to an examination of the potential for post-merger output and capacity reductions. This is particularly true if the merger eliminates competition on routes/airports and the carriers are adept at managing capacity – as is the case in Southwest/AirTran.

This White Paper by the American Antitrust Institute (AAI) is the first of what is intended to be a series by the AAI on competition in the U.S. airline industry. It is based on publicly available information – no confidential information was provided to the AAI in the course of preparing this analysis. While we do not make a recommendation as to the legality of the proposed Southwest/Air Tran merger, the paper raises important questions that deserve investigation before a decision is made.  


The Proposed Merger of US Airways and American Airlines: The Rush to Closed Airline Systems

Should US Airways make a bid for American Airlines, currently in bankruptcy proceedings, the deal could present a conundrum for antitrust authorities. The transaction would create the largest domestic airline, reducing the number of legacy mega-carriers to three – Delta Air Lines (Delta), United Continental, and US Airways-American Airlines (US Airways-American). This consolidation would occur against an industry backdrop marked by a dwindling fringe of low-cost carriers (LCCs) and growing questions as to whether legacy look-alike Southwest Airlines-AirTran Airways (Southwest) exerts any significant competitive discipline in the industry. The merger could therefore hasten a troubling metamorphosis of the domestic airline industry from one in which hub airports were designed to accommodate multiple, competing airlines to a few large, closed systems that are virtually impermeable to competition and create a hostile environment in which LCCs and regional airlines have difficulty thriving and expanding.

This White Paper, produced jointly by the American Antitrust Institute (AAI) and Business Travel Coalition (BTC), asks: What competitive issues should be the focus of antitrust investigators in reviewing the proposed merger of US Airways and American?

The paper takes the position that a U.S. Department of Justice (DOJ) investigation into the proposed merger of US Airways and American should be informed by mounting evidence on the effects of previous airline mergers, namely Delta-Northwest and United- Continental. The White Paper presents a brief analysis of these combinations and highlights a number of preliminary observations that deserve a more in-depth look. These range from the effects of previous mergers on creating costly post-merger integration problems, substantially reducing rivalry on important routes, producing above-average fare increases, and driving traffic to major hubs and away from smaller communities.

The White Paper continues on to evaluate key competitive issues raised by the proposed merger of US Airways and American that deserve some attention in an antitrust investigation. One is the expected outcome – similar to previous legacy mergers – that the proposed combination could eliminate competition on a number of important overlap routes, creating very high levels of concentration and potential harm to consumers. The risk that the proposed merger could adversely affect small communities through reduced levels of, or lower quality, air service is also worth a close look. Another observation is that the merger is unlikely to be one of complementary networks (as might be argued) and could instead create regional strongholds and solidify US Airways-American’s control over key airports. Any arguments that the merger is necessary to create another “equal-size” competitor to the existing Big 3 systems are also not compelling. The analysis concludes by examining the potential effect of the merger on buyer market power and disclosure of information regarding ancillary service fees.

The joint AAI/BTC White Paper offers a number of concluding observations and recommendations. Among them is that our analysis of the US Airways-American merger– coupled with potential warning signs from previous legacy mergers – indicates that there may be enough smoke surrounding the proposed combination to indicate a potential fire. The merging parties therefore bear a heavy burden is demonstrating that their merger would not be harmful to competition and consumers. 

August 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 21, 2013

China, UAE Expand Air Services Under New Agreement

Representatives from China and the United Arab Emirates have reached agreement on new terms governing air transport between them. According to reports the frequencies to and from multiple Chinese cities will be increased and at Haikou, Sanya and Yinchuan frequency limits will be abolished altogether. The agreement is also reported to include fifth freedom traffic rights (along with third and fourth, of course) to be used out of the latter three cities. 

August 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 20, 2013

Why Have Airline Emissions Not Received More Attention in the U.S.?

A blog post yesterday from the Huffington Post characterizes the international debate over aviation emissions, fairly I think, as being "under the radar." The subject certainly has not received anywhere close to the amount of attention in the United States that has been devoted to construction of the Keystone pipeline. This is somewhat understandable, as a pipeline offers not only a much more visceral symbol but also a more tangible objective for advocates on both sides of the issue to rally around. Additionally, evidence to date suggests that both the U.S. media and public are only willing to devote a limited amount of bandwidth to the subject of climate change, and that coverage is easily taken up with stories on Keystone and natural disasters. Still, the lack of discussion of the subject in the U.S. has occurred despite the contentious international disagreement over the European Union's emissions trading scheme and the potentially momentous unveiling of ICAO's global emissions reduction proposal next month. This can't entirely be explained by the absence of aviation emissions from the political agenda as both legislative chambers passed a bill barring U.S. carriers from complying with the EU emissions regulation, which the President signed into law.

With much of his legislative agenda stalled in a divided congress, international aviation is one area, like the Keystone pipeline, where President Obama can support measures to combat climate change primarily through executive action. It is true that the current U.S. Senate will not ratify a Kyoto-like agreement on aviation emissions, but the executive branch should be able to assert a large influence on international policy on aviation emissions through more subtle diplomatic channels such as U.S. representation within ICAO and bilateral negotiations with EU officials over the ETS issue. By the end of the year we'll hopefully know a lot more about the administration's actions on both fronts. I'm skeptical, however, that anyone will take notice given how muted the responses from both sides of the political aisle were to the European Union Emissions Trading Scheme Prohibition Act. Regardless of what U.S. policy should be with regard to carbon emissions from international aviation, the issue undoubtedly warrants greater public attention.

August 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Haneda Slots Decision Looms Large

Between the resolution of the DOJ's attempt to block the American Airlines/US Airways merger and the 2013 ICAO Assembly Session, the aviation industry won't be lacking for major developments these next few months. Reuters reminds us of another highly consequential decision scheduled to come down soon: the Japanese government is expected to award 20 additional landing slots at highly congested Haneda airport in October. The distribution of those slots between oneworld member JAL and Star-aligned ANA will obviously be of great interest throughout the industry.    

August 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, August 16, 2013

Reactions to DOJ Suit

To close the week, here is a compilation of various commentary and news updates on the DOJ's surprising decision to challenge the American Airlines/US Airways merger:

  • A highly critical take on the DOJ's decision.
  • And a more positive view.
  • Former American Airlines CEO Robert Crandall isn't a fan of the move
  • Loose lips sink planes? The DOJ complaint makes extensive use of quotes from US Airways executives. 
  • A good recap of negotiations leading up to the DOJ announcement.
  • Texas Attorney General Greg Abbott explains why Texas joined the DOJ suit.
  • Some are skeptical about the prospects for a settlement.
  • Lawyers from the two carriers discuss plans to fight the suit.
  • Meanwhile, the judge overseeing American's bankruptcy process postponed his decision on the carrier's reorganization plan with the merger up in the air.
  • A judge has been assigned to the antitrust case.
  • Staffing decisions related to the merger are being put on hold, at least temporarily.
  • Airline stocks prices fell.
  • Finally, this story suggests that American and US are largely the victims of bad timing. I think there's some truth to that. The industry is more consolidated now than when earlier mergers were approved. It is also more profitable. On the government side, the DOJ has had time to witness the consequences and feel some regret over the approval of earlier mergers and to gain comfort with enforcing the new Horizontal Merger Guidelines. Related, though unmentioned in the article, the DOJ's argument about coordination of baggage fees wasn't available for some of the earlier mergers.  

August 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday Non-merger Links

It's been a busy news week, so I thought it best to break up the end-of-week aviation link omnibus into two posts. Here's a collection of aviation pieces that may have been missed amidst the merger madness. We'll have a collection of reactions to the DOJ decision posted later this afternoon.

  • Matt Yglesias takes on cabotage restrictions. For a longer analysis, we recommend Robert Hardaway's Of Cabbages and Cabotage.
  • Justin Fox questions the success of U.S. airline deregulation.
  • Is high speed rail hurting Chinese airlines? A good companion piece to last week's story on Chinese flight delays.
  • Ryanair has dismissed the pilot who publicly criticized the carrier's safety practices.
  • More Dreamliner technical glitches.
  • Investigation ongoing into cause of UPS cargo plane crash that killed both pilots earlier this week.

August 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 15, 2013

Is US Airways a Maverick?

As I have observed in multiple posts the past two days, the potential elimination of US Airways' Advantage Fares program appears to be an important component of the DOJ's opposition to the American Airlines/US Airways merger. Although the complaint doesn't use the actual term "maverick," it is clear from the analysis that the DOJ views US Airways operations under that program as playing the role of a "maverick" firm.

Under the 2010 Guidelines, one piece of evidence that the DOJ can use to determine that a merger will have anti-competitive effects is if the merger eliminates a maverick firm:  

The Agencies consider whether a merger may lessen competition by eliminating a “maverick” firm, i.e., a firm that plays a disruptive role in the market to the benefit of customers. For example, if one of the merging firms has a strong incumbency position and the other merging firm threatens to disrupt market conditions with a new technology or business model, their merger can involve the loss of actual or potential competition. Likewise, one of the merging firms may have the incentive to take the lead in price cutting or other competitive conduct or to resist increases in industry prices. A firm that may discipline prices based on its ability and incentive to expand production rapidly using available capacity also can be a maverick, as can a firm that has often resisted otherwise prevailing industry norms to cooperate on price setting or other terms of competition.(2010 Horizontal Merger Guidelines 2.1.5).

The maverick firm concept has been a part of antitrust law for a while (see this 2002 article by Jonathan Baker for a great discussion of the concept and application to scenarios involving the airline industry). But it has received increased attention under the Obama administration, appearing in DOJ complaints against recent high profile merger attempts such as AT&T/T-Mobile and H&R Block/TaxACT (this 2013 note from Taylor Owings provides a good overview of recent cases).

So what makes US Airways a maverick firm? As I wrote Tuesday, and as the section V.C.1. of the complaint explains, under the Advantage Fares program US Airways offers one-stop flights on certain routes that significantly undercut the fares offered by dominant non-stop carrier on those routes. According to the complaint, the other major network carriers don't use connecting flights to undercut prices on their competitors' non-stop monopolies out of fear of retaliation on their own non-stop routes. It is only the less profitable structure of US Airways' own non-stop routes that gives US Airways the incentive to compete in this way. This lines up with two of the potential maverick firm characteristics described above: US "[has] the incentive to take the lead in price cutting or other competitive conduct or to resist increases in industry prices," and "has often resisted otherwise prevailing industry norms to cooperate on price setting or other terms of competition."

So will the court buy this maverick firm argument? An examination of the court's opinion in H&R Block suggest that it might. That court was highly dismissive of the importance of labeling one of the firms involved as a "maverick," at one point accusing the government of playing "semantic gotcha." This may be one reason why the DOJ declined to use the term in this complaint, instead describing the Advantage Fares program as "highly disruptive to the industry's overall coordinated pricing dynamic." However, the court in H&R Block was persuaded by the underlying theory -- that TaxACT played a special market role that constrained prices and its elimination would therefore be anti-competitive. So there is no reason to assume the court will reject the theory outright. Additionally, the DOJ presents fairly persuasive evidence that the Advantage Fares program will be discontinued should the merger go forward, addressing the frequent counterargument from merging firms that the competitive "maverick" behavior will continue post-merger. To defeat the DOJ's argument, attorneys for American Airlines and US Airways are likely to contest whether US Airways, through its Advantage Fares program, actually plays a price-constraining role within the domestic air service market, a claim some have already disputed.

August 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 14, 2013

DOJ Opposition to AA-US Merger Mostly About Coordinated Effects

While I laid out the DOJ's rationale for opposing the proposed AA-US merger in mostly layman's terms in yesterday's post, I thought it appropriate to come back and explain the legal theory underpinning the DOJ's argument. The place to look to better understand the basis for this move is section 7 of the 2010 Horizontal Merger Guidelines, under the heading "coordinated effects." According to the Guidelines:

A merger may diminish competition by enabling or encouraging post-merger coordinated interaction among firms in the relevant market that harms customers. Coordinated interaction involves conduct by multiple firms that is profitable for each of them only as a result of the accommodating reactions of the others. (Horizontal Merger Guidelines 7)

The bulk of the DOJ complaint is dedicated to a discussion of coordinated interaction between U.S. legacy airlines. The possibilities for increased post-merger coordination are laid out in section V subsection C of the complaint, which represents approximately 15 pages of the 34-page complaint and is the heart of the complaint's analysis of potential anti-competitive effects. The arguments about industry-wide capacity discipline leading to higher fares, increased baggage fees and abandoned hubs are all addressed as potential coordinated effects. It is the DOJ's contention that each of these actions would be unprofitable if undertaken by an airline individually, but that all of the major carriers will profit if they adopt these measures simultaneously. The DOJ's concern for the future of US Airways' Advantage Fares program is also related to this coordinated effects analysis, something I'll examine further in a future post. It may seem that the DOJ has assigned itself the daunting task of proving each of those consequences are likelier to take place post-merger, and as a result of coordinated as opposed to distinct business strategies, but the Guidelines are fairly lax with regard to the need to justify coordinated effects arguments:

There are, however, numerous forms of coordination, and the risk that a merger will induce adverse coordinated effects may not be susceptible to quantification or detailed proof. Therefore, the Agencies evaluate the risk of coordinated effects using measures of market concentration (see Section 5) in conjunction with an assessment of whether a market is vulnerable to coordinated conduct....Pursuant to the Clayton Act’s incipiency standard, the Agencies may challenge mergers that in their judgment pose a real danger of harm through coordinated effects, even without specific evidence showing precisely how the coordination likely would take place. (Horizontal Merger Guidelines 7.1)

This permissive evidentiary standard will likely prove important if the DOJ lawsuit proceeds to trial and is successful in blocking the merger (note that the Guidelines aren't binding on courts, although courts often rely on them). The DOJ appears on sound footing in describing the airline industry as structurally vulnerable to coordination, describing it as dominated by a few large players, consisting of small transactions with transparent pricing. The DOJ also provides evidence (especially from US Airways) of previous examples of coordination, and attempted coordination as well as business planning around the anticipated reactions of competitors.

Demonstrating that a market is vulnerable to coordination is only one of three criteria the Guidelines consider necessary for making a coordinated effects case, DOJ also needs to show that the merger would significantly increase concentration and lead to a moderately or highly concentrated market. The DOJ attempts to do this through its annex of city-pairs that will experience a significant increase in concentration as well as its reference to consolidation in the U.S. airline industry overall. The DOJ must also have "a credible basis on which to conclude that the merger may enhance that vulnerability." Again, note the low threshold required under that phrasing. As I quoted yesterday, the DOJ believes removing one more major airline, regardless of the routes involved, is enough to make coordination easier and thus the merger worth blocking.

This is not to say that a court will be persuaded by the DOJ's coordinated effects argument, or that it won't demand greater empirical justification for the DOJ's claims than the Horizontal Merger Guidelines require. But for anyone who is surprised by the lack of rigorous city-pair analysis in the DOJ's suit, the arguments the DOJ makes are in keeping with an emphasis on structural factors and coordinated effects arguments in prior cases brought by the DOJ under the Obama administration. 

August 14, 2013 | Permalink | Comments (0) | TrackBack (0)