Shrinking Market Doctrine for Aging Stagnant Economies?: The JFTC 2019 Revision of Merger Guidelines

Shrinking Market Doctrine for Aging Stagnant Economies?: The JFTC 2019 Revision of Merger Guidelines

 

Masako Wakui

Kyoto University Graduate School of Law

Abstract

While Japan is aging rapidly and the local communities in rural areas are struggling to maintain their essential societal function, the Japan Fair Trade Commission (JFTC) has revised the merger guidelines to allow for mergers that create a monopoly. Under the new approach, which the author calls the shrinking market doctrine, such a merger is deemed to lack an anti-competitive effect if the market is no longer large enough to hold multiple companies. The article examines the precedent of the doctrine (a regional bank merger case), the logic behind it (counterfactual analysis and minimum efficient scale argument) and the way the JFTC is likely to apply the doctrine. The author then concludes that the careless application of the doctrine would lead to harm on the local community and that the doctrine should not add much to the already existent efficiency defence and failing company doctrine.