Public Interest and Non-Price Considerations in Merger Control

Scholars Panel on Non-Price Effects: Turning Smoke Into Fire

Abstract

There has been an increasing trend recently in subjecting merger control assessment to factors that are not merger specific per se. Such factors relate to public interest considerations, national security considerations, as well as other types of factors that competition authorities take into account in assessing a merger’s competitive impact. In a number of cases, merger control has
been used to introduce or complement wider industrial policy or other priorities that are unrelated to the economic impact of the mergers in question. This paper will examine the question of competition law objectives in regard to their theoretical coherence and consistency and will in that context investigate whether the introduction of a wide range of considerations could possibly
have a detrimental effect and ultimately possibly be at the expense of transparency, practical applicability, predictability and justiciability. It undertakes in-depth analysis of the role of public interest considerations such as national security and media plurality in EU and UK merger control, as well as recent attempts to consider non-price considerations such as privacy under the guise
of the competitive effects of the transaction in question in the EU, the UK, the US and elsewhere. Ultimately, the author concludes that in the interests of practicality, predictability and justiciability, merger control for competition law purposes should focus on the market impacts of the transaction, in both price and non-price dimensions, but that other factors that may well feature in conceptions of the “public interest” writ large ought to be addressed pursuant to separate legislation and by other law enforcement agencies.