LAW & ECONOMICS: MERGERS - COMPETITION AUTHORITIES - ENFORCEMENT - REVIEW TECHNIQUES - PERFORMANCE - LITERATURE - GOOD PRACTICES

The next step in the development of ex post evaluation of merger review procedures: Defining the state of the art with staged options for implementation

Ex post review of the pre-consummation merger evaluation decisions of competition law enforcement authorities is today widely viewed as a desirable practice likely to improve future agency performance. As a result, there is now an established body of literature discussing both the desirability of ex post reviews, as well as the various techniques available for conducting them, and a number of agencies have implemented the practice. This article argues that the time is ripe to undertake an international effort to define the “state of the art” in ex post review techniques, in order to develop a “good practices” guide or handbook. Such a guide might be especially valuable to younger agencies. Sensitive to the often limited resources of such agencies, however, it also advocates efforts to identify simplified, yet still reliable means for conducting ex post reviews, which would provide these agencies with reasonably effective means for taking advantage of the practice’s benefits, while being scaled to take into account their limited resources.

Introduction There is now a rich body of commentary touting the benefits of ex post review [1] of merger decisions by competition law enforcement authorities. Many commentators have argued persuasively that as a matter of good practice agencies should be willing to look back at their previous decisions, evaluate the results of their work, and utilize the lessons learned to improve future decision-making [2]. Ex post review can also have broader policy implications if it reveals that the standards imbedded in specific laws, regulations, or interpretations used by agencies, systematically over- or under-deter harmful mergers [3]. Advocates of ex post review identify both “internal” and “external” benefits of the practice. Internally, ex post review can help to build agency capacity. It

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Andrew Gavil, The next step in the development of ex post evaluation of merger review procedures: Defining the state of the art with staged options for implementation, December 2011, Concurrences Review N° 4-2011, Art. N° 39446, www.concurrences.com

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