(Bloomberg) —The Justice Department is sending a warning signal to health insurers, chemical companies and others seeking antitrust approval for big deals: Leave the dubious charts at home.
Antitrust lawyers for companies seeking approval for big mergers have for years bolstered their case by providing extensive economic analyses, often market by market, to show that the tie-ups wouldn’t stifle competition. Now, Justice Department officials are saying they’re not going to be swayed in their analysis by impenetrable economic models.
While the Justice Department isn’t naming names or pointing any fingers for presenting unseemly data, the comments are the most recent indication that it’s taking a tougher stance against megadeals. The latest salvo came Thursday, when the department’s No. 3 official, Bill Baer, said antitrust enforcers can’t let up on their commitment to blocking mergers that the department deems anticompetitive in the waning days of the Obama administration.
“Our assessments of competitive effects do not simply rely on quantitative evidence provided by expert testimony,” Baer, who until recently ran the department’s antitrust unit, said in a speech in Washington. Company documents and testimony from rivals and consumers may provide better evidence, he said.
“Junk science” is what another official, David Gelfand, called some of the economic analysis presented to the department to justify deals. Charts and pictures are great — but not data that’s mixed and matched to make a case, Gelfand said in a June 6 speech in Washington, shortly before leaving his job as a deputy assistant attorney general in charge of litigation to return to private practice.
U.S. antitrust enforcers who have recently opposed deals to unite office suppliers, oil-services firms and cable companies, are now vetting mergers that could remake agriculture and health care.
“The United States is in the midst of a merger wave, with the number, size and complexity of mergers among the highest they have been in the last decade,” said Baer, who is now the Justice Department’s acting associate attorney general. “Especially in this environment, we cannot afford to let up our efforts.”
Planned mergers among four of the five biggest U.S. health insurers and agricultural chemical and seed companies would lead to “substantial consolidation” and require close scrutiny, Baer said.