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 The 'familiar' horizontal merger playbook is of little use. The proposed transaction is a vertical merger - i.e., one that involves 'firms that do not operate in the same market' and thus 'produce[s] no immediate change in the level of concentration in any relevant market.' 'There is no short-cut way to establish anticompetitive effects, as there is with horizontal mergers.' Horizontal mergers increase market concentration, and high market concentration can substantially lessen competition among rivals, particularly with respect to price. There is no comparable theoretical basis for dealing with vertical mergers.'


With no presumption of harm in play, to satisfy its burden here, it must make a 'fact-specific' showing that the effect of the proposed merger 'is likely to be anticompetitive.' Joint Statement 3-4. Such a showing is 'necessarily both highly complex' and 'institution specific.' David T. Scheffman & Richard S. Higgins, Vertical Mergers: Theory and Policy, 12 Geo. Mason L. Rev. 967, 967 (2004); see also Gov't PCOL ¶ 25 (collecting sources for proposition that 'vertical mergers are judged on a case-by-case basis' based on consideration of 'case-specific evidence of a danger of future competitive harm'). Of particular relevance here, the Government states that a ...

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