Wednesday, February 26, 2020
Normative Goals in Merger Control: Why Merger Control Should Not Attempt to Achieve 'Better' Outcomes than Competition
Stefan Thomas, University of Tuebingen - Faculty of Law discusses Normative Goals in Merger Control: Why Merger Control Should Not Attempt to Achieve 'Better' Outcomes than Competition.
ABSTRACT: Recent academic discourse and economic events on both sides of the Atlantic have cast doubt over the paradigms of antitrust enforcement as we know them. Critical observers state that current policies fall short of addressing the wider societal implications of a market economy, inter alia in merger control. The interests of employees in decent wages, merger impacts on the environment, or the pursuit of a governmental industrial policy are claimed to deserve recognition beyond the traditional consumer welfare paradigm. Extending the merger analysis to such normative goals, however, comes with tradeoffs: It is prone to convey merger enforcement to a paternalistic control of market outcomes. Moreover, antitrust agencies will become exposed to a plethora of irreconcilable societal expectations and group interests. Eventually, the normativity approach will lead to an increased politicization of merger enforcement and weaken competition as a design-principle for a market economy. This article claims that society at large is better served with a merger control regime that devotes itself to consumer welfare through competition as a mono-teleology.