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 The Brown Shoe 'practical indicia' include: (1) industry or public recognition of the market as a separate economic entity; (2) the product's peculiar characteristics and uses; (3) unique production facilities; (4) distinct customers; (5) distinct prices; (6) sensitivity to price changes; and (7) specialized vendors. Brown Shoe, 370 U.S. at 325. Courts routinely rely on the Brown Shoe factors to define the relevant product market. See, e.g. Staples, 970 F. Supp. at 1075-80; Cardinal Health, 12 F. Supp. 2d at 46-48; FTC v. Swedish Match, 131 F. Supp. 2d 151, 159-64 (D.D.C. 2000); FTC v. CCC Holdings, 605 F. Supp. 2d 26, 39-44 (D.D.C. 2009); United States v. H & R Block, 833 F. Supp. 2d 36, 51-60 (D.D.C. 2011). Courts are aware of the academic observation that 'the rationale for market definition in Brown Shoe was very different from and at odds with the rationale for market definition in horizontal merger cases today.' Phillip E. Areeda and Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application at 237 (CCH, Inc. 2015).


Today the concern is that the post-merger firm might be able to raise prices without causing too much output ...

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