An evaluation of GAFAM’s acquisition proposals in light of experimental studies

This article analyses the proposals for reversing the burden of proof in the review of acquisitions by GAFAM, along with the experimental studies that retrospectively analyse these acquisitions. It finds that these proposals, which are based on the presumptions that acquisitions by GAFAM are anti-competitive, are not warranted in light of the experimental studies and enforcement track records of the Federal Trade Commission and Department of Justice. This article also highlights that there is evidence indicating that the consumer benefits stemming from acquisitions by GAFAM may outweigh any possible anti-competitive impact and emphasizes that the proposals for the reversal of the burden of proof undermine (i) the risk of losing synergies and chilling innovation; (ii) the legitimate motivations of parties for conducting such acquisitions; and (iii) the risk of entrenching larger firms’ market power while discouraging smaller firms from competing and innovating. All in all, highlighting the lack of empirical evidence on the anti-competitive harm and risks that may arise as a result of reversing the burden of proof, this article concludes that even erring on the side of under-enforcement, in relation to the review of these mergers until revealing their actual competitive effect, may be preferable to the alternative.

I. Introduction 1. Acquisitions by the five major technology companies—namely, Alphabet Inc. (“Google”), Amazon.com, Inc. (“Amazon”), Meta Platforms, Inc. (“Facebook”), Apple Inc. (“Apple”) and Microsoft Corp. (“Microsoft”) (together referred to as “GAFAM”)—have been at the centre of the merger policy debate in recent years. The alleged concerns regarding these acquisitions point out, among others, that (i) GAFAM may be conducting these acquisitions to terminate the targets’ relevant innovation efforts and eliminating nascent competitive threats; [1] (ii) GAFAM’s entrance into a new market may discourage other new entries into that market; [2] and (iii) GAFAM may require the users of the acquired platform and their primary platform to give consent for the bundling of the data collected

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