Revisiting the role of the public interest in merger control

In the light of advances in economic theory and harmonisation initiatives, most jurisdictions now adopt a competition effects-based approach to merger control assessments. Given the emphasis that these assessments now afford to competition criteria, it might be said that the influence of wider ‘public interest’ considerations has become increasingly marginalised. Nevertheless, despite this marginalisation, most domestic merger regimes continue to reserve a role for public interest criteria, albeit a very restricted one in most cases. This has fuelled an on-going debate regarding the wisdom and legitimacy of considering public interest criteria in the merger assessment process. One argument, often cited by competition purists, is that pursuing a strict adherence to competition principles will deliver optimal long-term benefits for both consumers and the public at large. The main counter-argument has centred on the perceived inability of competition to respond to short-term public interest concerns which, if left unaddressed, may have lasting implications on fundamental interests such as employment, public health and democracy. Important questions therefore transpire: Is merger control an appropriate realm in which to address public interest concerns, or can these be dealt with more effectively via alternative policy means? If it is appropriate, how should public interest criteria be framed within the merger control legislation, and who should be tasked with applying this criteria? This thesis adopts legal and empirical research methods to scrutinise the role that states have afforded to the public interest in modern-day merger control. By drawing insights from merger regimes across the world, the thesis proposes a framework for accommodating public interest criteria effectively within merger control