Non-Standard Counterfactuals in Merger Control

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The authors compare and contrast competition agencies’ approaches to competition and failing firm counterfactuals in merger cases.

The topic of nascent acquisitions has drawn a great deal of attention in merger control circles during the last few years and placed a heavy focus on potential competition counterfactuals. Additionally, while the competition agencies have said they do not plan to change how they consider failing firms in light of the COVID-19 pandemic, failing firm counterfactuals may be more frequently used given economic circumstances.

In this chapter for Getting the Deal Through—Merger Control 2020, authors Greg Eastman, and Kostis Hatzitaskos discuss how the substantive legal test does not depend on the nature of the counterfactual, and the potential importance of considering uncertainty about the counterfactual.

This chapter was originally published by Lexology in Getting the Deal Through—Merger Control 2020.


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Non-Standard Counterfactuals in Merger Control

Authors

  • Washington

Greg Eastman

Senior Vice President

  • Chicago

Kostis Hatzitaskos

Vice President