EFFICIENCIES AND MERGER ANALYSIS

Oliver Williamson's seminal work on efficiency considerations in merger analysis1 has spurred a veritable cottage industry of panel discussions and law journal articles on the proper role of efficiencies in merger cases.2 Yet in spite of the wide consensus in the legal and economic literature favoring some sort of an efficiencies defense in merger cases, judicial acceptance of a full-fledged efficiencies defense has been slow in coming. Recently, however, efficiency considerations have begun to play a significant role in merger analysis, albeit often as a "plus" factor that may resolve competitively close cases. And although no court has upheld an otherwise anticompetitive transaction on the basis of efficiencies, the courts have now accepted the existence of an efficiencies defense.