A comparative look at failing firms and failing industries

Article Abstract:

The treatment of mergers that involve failing companies or failing industries under New Zealand and European Union (EU) competition policies may not be transferable to the US context because of differing economic conditions and policy goals. Failing companies can claim in New Zealand that merging would be in the public interest, and companies in EU member nations can avail themselves of a number of defenses based on economic and social benefits. The authorization process these jurisdictions use would be problematic in the US because balancing competition and social goals is beyond the expertise of US antitrust agencies.

Comparative analysis, New Zealand, European Community

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Understanding and appreciating EC competition law

Article Abstract:

The purpose of European Community (EC) competition law is to create a unified common market in which the national boundaries between member states have diminished importance. EC competition law must to some extent have the function that the supremacy and the commerce clauses have in the US in effecting a Community-wide market. EC competition policy is lenient about agreements between competitors when such agreements promote community unification and strictly against abusing a dominant position in EC trade. EC merger regulations try to prevent such abuse.

International aspects, Economic policy, Unfair competition (Commerce), Unfair competition, European Union

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Re-examining the failing company defense

Article Abstract:

The test for the failing company defense in merger cases established in Citizen Publishing Co. v. United States is overly rigid and could better promote mergers that will save communities and workers from the significant costs of job loss. The standard for imminent business failure is too high, and companies that wait long enough to meet this standard may suffer irreparable harm. The test also needs to better incorporate the social costs resulting from business failures.

Cases, Acquisitions and mergers

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