Assessment of Innovation Effects of Mergers

Summary of Doctoral Dissertation Assessment of Innovation Effects of Mergers The adequate consideration of innovation effects of mergers in merger review was, and still is, one of the most controversially discussed issues between antitrust scholars. In this connection the question has been raised whether the traditional categories in competition law are sufficiently suitable for dealing with innovation aspects or whether new concepts for the assessment of innovation effects of mergers are needed. This argument relates to the question whether the firms who compete in regard to existing products necessarily play a role in regard to innovation competition. Or, by asking the opposite question, whether there are perhaps additional firms (by also accounting for firms outside the current product market) that actually compete with one another in the sphere of innovation. Thus, although the assessment of product markets as a device to identify the relevant competitors is a well-founded step to protect static price and non-price competition, the sole assessment of the respective product market will probably not reflect the true situation regarding innovation competition. Accordingly, each of the five articles of this thesis builds on the idea that the relevant competitors in terms of innovation do not necessarily correspond to the relevant competitors on existing product markets. From an economic perspective the definition of “markets” was always only a vehicle for identifying the set of relevant competing firms. In a concept of static competition, it was logical to use the set of current products, and analyze their substitutability conditions from the demand and the supply side in order to determine the set of relevant competitors. However, the attempt to stick to the product market concept for defining the relevant competitors for innovation is theoretically deeply flawed. Since the production and sale of products does not require the same resources and capabilities as the generation of innovations, a general assumption of such an identity cannot be defended. This discussion led to the development of the so-called "Innovation Market Analysis" (IMA), an innovation-specific assessment approach, in the 1990s. Even though the IMA was also applied to a significant number of U.S. merger cases in the years thereafter, it was heavily criticized by many lawyers and economists. Hence, it is still not clear how antitrust agencies should deal with innovation aspects in the review process of mergers. This research project assesses how and to what extent the U.S. antitrust authorities in their case practice investigated mergers on possible negative effects on innovation and whether the investigation concepts are appropriate or need to be developed. Particular relevant questions which arise in this connection are: (1) how the firms, which compete with one another in the sphere of innovation, should be identified. This raises the question whether the identification of the relevant competitors should be carried out by relying on the traditional product market concept, or whether there is a need to use/develop alternative approaches, such as the "Innovation Market Analysis". (2) In this connection it is also necessary to consider the theory of harm behind the claimed negative effects of mergers on innovation. Should competition authorities rely predominantly on well-established arguments about innovation incentives, provided by the neoclassical industrial organization literature, or is it instead advisable to also include the insights provided by other strains of literature, e.g. the evolutionary economics literature? (3) How should an adequate assessment framework, which would help competition authorities to deal with innovation effects of mergers look like? How can it account for the complex and often divergent effects between competition and innovation while providing legal guidance at the same time? These research questions are addressed by this dissertation, both from a theoretical/conceptual (articles 1-3), as well as from an empirical perspective (articles 4-5). It is remarkable, that the data set which was generated in connection with the empirical part of the present work is unique and provides the basis for the only econometric analysis of the U.S. merger control practice with respect to the consideration of innovation aspects which exists so far. The first article deals with the question of how the firms which compete with one another in the sphere of innovation should be identified and whether these mergers should be assessed under the theory of Innovation Markets, Future Markets or Potential Competition. Traditionally, competition authorities tend to focus on the assessment of competition on relevant product markets. Hereby, the relevant firms that compete with one another are identified, and possible anticompetitive effects are revealed. But, in contrast to competition concerning prices, quantities, or product quality, competition in the sphere of innovation is not necessarily tied to existing product markets. The same holds true for the counterexample. Competition authorities might find that a certain product market is highly concentrated. However, by also accounting for innovation competitors outside the current product market (e.g., firms that are well situated to undertake R&D in a particular field or firms that are already undertaking R&D), the merger could appear less anticompetitive, at least in respect to innovation. Hence, this first article reviews the (existing) approaches that can generally be used for the assessment of anticompetitive innovation effects in merger control and explores these approaches through exemplary merger cases. In this connection the paper develops six case groups of merger cases in which innovation aspects play a role. Based on these case groups, the paper demonstrates that the traditional approaches of ‘potential competition’ and ‘future markets’ cannot account for all aspects of innovation competition. In addition, the article also shows that it is furthermore questionable whether the ‘future market’ concept can capture innovation competition to its full extent, even in those merger cases in which it can generally be applied. However, the ‘Innovation Market Analysis’, the only tool especially designed to account for innovation competition so far, also has several shortcomings. Hence, at present there is no clear-cut approach which the antitrust agencies in the U.S. as well as in the E.U. could utilize as reference for an intervention aimed at the protection of innovation competition. The development of a revised approach for the assessment of potential anticompetitive innovation effects in merger reviews is therefore required. Nevertheless, the ‘IMA’ might still serve as a good starting point for the development of such a revised framework. Specifically, the framework should incorporate the concept of assessing relevant innovation competitors independently of their role on current product markets – a breakthrough idea that was introduced in the ‘IMA’. The second article builds on the results of the first article. Hereby the paper aims to develop the basic outlines for an assessment framework which could help competition authorities to deal with innovation effects of mergers and which could furthermore provide legal guidance. In addition, this contribution will specially cater for the implications which result from the separate consideration of innovation competition from actual product markets for the relationship between competition, concentration and innovation. These implications arise from the fact that the differentiation into product market competition on the one hand and innovation competition on the other, does not only have consequences for the identification of the relevant competitors, but is also crucial for assessing the anticompetitive effects of mergers on innovation. Consider for instance a merger which takes place between firms that compete with one another only in terms of innovation (leaving product market competition unaffected). This would imply that only a fraction of the insights, provided by the vast array of theoretical models, matters in this concrete merger review. Hence, these types of mergers require focusing on different models in order to gain insights for the assessment of possible anticompetitive innovation effects, than a merger taking place between two firms that do also compete with one another on pre-innovation product markets. As a consequence, since mergers of firms that compete with one another in the sphere of innovation could leave product market concentration unaffected, it is very questionable whether the findings about the ambiguous interrelationship between product market competition and innovation can be transferred one-to-one to the assessment of those mergers. Therefore, this paper analyzes the model-theoretic industrial organization literature and its findings about competition and the incentives to invest in product innovation oriented R&D against the background of this distinction into innovation competition on the one hand and product market competition on the other. For this purpose, we firstly reviewed the broad range of theoretical models, provided by the industrial organization literature. Hereby we particularly examined the underlying mechanisms of the models with respect to the question whether they rely on pre-innovation product market competition, or not. As a consequence, we received two distinct groups of potential innovation effects of mergers. The first group consists of effects which hinge on a change of current product market concentration, while the second group encompasses those kinds of effect which come into play even though pre-innovation product market competition is unaffected. Consequently, the effects of the first group are only relevant, if pre-innovation product market structure is affected by a certain merger, while the effects of the second group have to be considered even in those situations in which mergers do only affect innovation competition. Due to the fact that not every innovation effect is always relevant and since these innovation effects can furthermore have different impacts due to prevailing industry- and competition characteristics, it is helpful to assess the effects of mergers on innovation within certain case groups. However, in order to build these case groups, it is necessary to find the appropriate differentiation criteria. For this purpose, this article aims at identifying the relevant determinants, which are decisive for how a certain effect (e.g. the escape competition effect or the replacement effect) acts on the incentives to innovate. The identification and categorization of the innovation effects and relevant determinants thereby provides (1) a checklist of assessment criteria which antitrust authorities should take into account when analyzing innovation effects of mergers. (2) Besides this, this paper furthermore demonstrates how the development of such a decision theoretic assessment framework could be achieved. Such an assessment approach would allow combining the objective of a case-specific analysis with the requirement that this analysis is carried out in a consistent and transparent manner. It would therefore be in the spirit of a rule-based competition policy which is, from a law and economics perspective, ought to reduce error costs, give legal guidance and reduce legal uncertainty. Apart from that, the paper aims to demonstrate that the link between competition and the incentives to undertake product innovation oriented R&D, which can be derived from the industrial organization literature, is not always that unclear as it seems on the first sight. Especially with respect to mergers between firms that compete with one another in terms of innovation, absent/detached from actual product markets, the relationship appears to be far less cloudy. The third article then focuses on the question about the appropriate theory of harm behind the claimed negative effects of mergers on innovation. Traditionally, the discussion about anticompetitive innovation effects of mergers focused on the question whether a more or rather a less concentrated market structure (mostly narrowed to product market structure) is beneficial to innovation. However, until to date, theoretical as well as empirical contributions delivered rather contradictory results in the sense that they support the proposition that highly competitive just as much as more concentrated markets can basically spur innovation. Hence, from this perspective, it is not clear whether a merger, which leads to a higher market concentration, is detrimental or maybe even beneficial to innovation. However, while mainstream economics focuses almost exclusively on the likely effects of a change of market structure on the firms’ incentives to invest in R&D and their ability to innovate, a change of the market structure can also have an additional effect on innovation. This effect originates from the fact that a merger, which causes a reduction of the number of innovation competitors, can also harm innovation because it reduces the variety of heterogeneous entities which are currently undertaking R&D or which are well situated to undertake R&D in a certain field. Assuming that companies differ not only with respect to their cost functions, but also in terms of their resources, organizational structure, corporate culture, as well as with respect to their expectations about promising areas of business and research projects, then the reduction of the number of competitors may already be detrimental to the overall innovativeness of an industry. Against this background, "diversity" can be considered as another dimension of the process of innovation competition - a dimension which, in addition to the firms’ incentives and capabilities to innovate, might be worth protecting. However, this property of competition is much less recognized in the respective antitrust literature. One explanation for this phenomenon might be the fact that mainstream economics and especially the modern industrial organization literature have fundamental difficulties to capture this dimension of competition, which Joseph Farrell therefore called vividly “the dark matter of competition”. Apart from that it is also argued that, if “diversity” indeed has a noticeable effect on innovation, a merged entity should have an incentive to preserve such a fruitful environment in-house. Hence, a reduction of “diversity” among different firms (“inter-firm diversity”) might get balanced by an increase of the diversity within the remaining firms (“intra-firm diversity”) by itself. As a consequence, if one had to expect such an effect, antitrust authorities would have no reason to further consider this issue. By assessing the management and organizational science literature, this first article aims to bring to light whether and how firms consider the preservation of “diversity”, (1) either as a consequence of a newly created “intra-firm diversity”, or (2) because of a direct maintenance of an acquired firm’s autonomy, after a merger. For this purpose this contribution firstly investigates the “Corporate Entrepreneurship” (CE) literature which highlights the creation of independent subunits and spinoffs within a corporation. It is thereby demonstrated that the idea of a creation of independent entities in-house is indeed considered as an important determinant for the innovativeness and general performance of firms. However, it is also shown that firms, pursuing a CE strategy, will most likely face several grave implementation problems and trade-offs. The same holds true for a direct maintenance of “diversity” after a merger. Although the examined literature on post-merger integration presents strong arguments in favor of securing an acquired firm’s independence and autonomy in order to keep its innovation capacity, it also indicates that there will emerge a trade-off between this objective and the realization of efficiency gains through integration. Hence, on the one hand, the extensive management and organizational science literature suggests that considerations about the preservation of “diversity” in merger review might be exaggerated because firms should indeed have a strong incentive to preserve “diversity” in-house. On the other hand the analysis also shows that antitrust authorities cannot trust in the creation/maintenance of such an “intra-firm diversity” after a merger, since the merged entity will most likely face grave implementation problems and trade-offs. Whilst the first three articles focus on theoretical/conceptual questions, the forth article analyses empirically how the applied U.S. antitrust dealt with these issues in connection with the assessment of innovation effects in merger reviews. The decision to analyse the U.S. merger control practice stems from the fact that the U.S. authorities have examined a far greater number of mergers also towards innovation effects, than the European Commission. In this respect the paper analyzes the "complaints" and "decision and orders" in the course of an exhaustive survey from all 399 mergers, challenged by the DOJ or FTC in the period between 1995 and 2008. By using probit techniques, the econometric study tackles the question of how and to what extent the U.S. agencies have assessed innovation effects of mergers. Additionally, it is also asked whether the two agencies have used the same or different approaches in regard to innovation effects of mergers, and whether we can observe developments during this period 1995 until 2008 in regard to these assessments. Important questions in that regard were (1) whether the U.S. authorities used predominantly a traditional assessment approach based upon the product market concept or whether they also used more innovation-specific assessment approaches, e.g. the "Innovation Market Analysis". (2) In addition, it is important what theory of harm was brought forward in connection with the claimed anticompetitive innovation effects. Overall, the results about the practice of the assessment of innovation effects of mergers by the two U.S. antitrust authorities are very mixed and ambivalent. It is shown, that the agencies had innovation concerns in 135 mergers and that both agencies did consider for innovation effects in a third of all cases. However, on the basis of the 323 relevant markets with innovation aspects, the study also reveals that the two agencies did not have a clear and consistent assessment approach, and that both of them differed significantly also in regard to the question whether a more traditional product market approach should be used (mainly the DOJ) or whether a more innovation-specific approach should be applied, in which innovation is already considered in the market definition. A problematic outcome of our investigation is that in most cases the agencies gave no specific reasoning why the merger should lead to negative effects on innovation. Only in a minority of cases innovation incentive arguments and in some cases diversity arguments were mentioned. Another surprising and puzzling result is that the agencies increasingly have claimed simultaneously negative innovation and static price effects which can be interpreted as a sign of insecurity of the agencies, leading them to backing up their innovation concerns with more traditional and well-established claims about price effects. As a result, the article demonstrates that, on the one hand, assessing innovation effects is a well-established practice in U.S. merger policy, but, on the other hand, there are also a lot of inconsistencies and open conceptual questions in regard to the assessment approach, which also have not diminished over time. The fifth and last paper of the dissertation builds mainly on the empirical results of the forth paper and aims to put the observations into a wider picture by also incorporating the findings of the three theoretical/conceptual articles. For this purpose, the paper starts with reviewing the rich theoretical and empirical literature on competition and innovation. Hereby the theoretical models and reasonings get examined against the background of the differentiation into models which rely solely on innovation competition and those which do also incorporate current product market competition, proposed in the second paper of this dissertation. This structured overview is followed by an investigation of the vast array of the empirical studies on industry structure and innovation, market structure and innovation, and mergers and innovation. After introducing the existing assessment concepts for innovation effects of mergers, the empirical results of the forth article are introduced and subsequently assessed from a high-level competition policy perspective. Besides this, the article also provides a qualitative analysis of important merger cases after 2008 as well as an analysis of the U.S. Merger Policy under the Obama Administration and the reform discussion leading to the revision of the Horizontal Merger Guidelines in 2010. Hereby it is shown (1) that the cautious approach of assessing innovation effects has not changed under the Obama Administration, and (2) that despite the general consensus about the importance of innovation effects, the U.S. discussion is still very critical to more innovation-specific approaches in merger reviews. This can also be seen in the revised U.S. Horizontal Merger Guidelines, which stick entirely to the traditional product market approach. In that respect, the guidelines also do not seem to reflect the alread