The Vast Space in Which the Vertical Merger Guidelines Lived

Abstract

The thesis of this article is that the gap left by the abandoned Vertical Merger Guidelines (VMGs) is small, and that the gap should not be filled until a sound foundation for guidelines is built. The VMGs operated with a narrow scaffolding in a vast space of real-world decisions and a continuum of organizational forms. The illustrations in the VMGs were based on pricing models that show that anticompetitive exclusion may result from vertical mergers. But these models are incapable of generalization, and they do not account for investments, market uncertainty, contracting problems, information asymmetries, and governance issues. Perplexingly, the VMGs ignored research that considers such factors and illuminates a broad range of empirically verifiable efficiencies. The requisite foundation for effective vertical guidelines is not in place. Until it is developed, replacements will fail to screen vertical mergers that do not raise concerns and will not be of assistance when mergers are challenged. Antitrust scholars could advance the foundational work by developing authoritative briefs on topics such as anticompetitive exclusion, asset-specific investments, incomplete contracts and opportunistic behavior, information asymmetries and principal–agent problems, the purposes and effects of restrictive contracts, and the implications of network economies for the scope of firms.