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 In addition to the Brown Shoe factors, the Court must consider the expert testimony offered by the parties. The main test used by economists to determine a product market is the hypothetical monopolist test. (HMT). This test queries whether a hypothetical monopolist who has control over the products in an alleged market could profitably raise prices on those products. ('The key question is whether a hypothetical monopolist in the alleged market profitably could impose a small but significant and non-transitory increase in price (SSNIP)') (citing United States v. Oracle Corp., 331 F. Supp. 2d 1098 at 1111-12 (N.D. Cal. 2004). If so, the products may comprise a relevant product market. See H & R Block, 833 F. Supp. 2d at 51-52. The HMT is explained in the Merger Guidelines.


The test requires that a hypothetical profit-maximizing firm, not subject to price regulation, that was the only present and future seller of those products ... likely would impose at least a small but significant and non-transitory increase in price ('SSNIP') on at least one product in the market, including at least one product sold by one of the merging firms. Merger Guidelines § 4.1.1 The ...

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