What'll they do? Bear in mind that any of these big set-pieces that come into the Commission are always tangled, could-go-either-way affairs, and (just to be clear) I have no dog in the fight, but my guess is they'll reaffirm their decline.
For one thing, while they have to have an open mind to the late flurry of submissions, and I'm sure they do, it's going to be rather hard to walk back from this (para 1012 of the draft decision, footnote omitted):
And from this (para 1016)Even in the face of a changing media landscape, the Commission cannot lose sight of the fact that is being asked to authorise a merger that would provide a single organisation with control of nearly 90% of all print media, New Zealand’s two largest news websites, and one of New Zealand’s two largest commercial radio companies. This would be an unprecedented level of media concentration in a well established liberal democracy
The parties and their lawyers and consultants have had a good go at the "changing media landscape" and "detriments to plurality" points (and others, including how the Commission has applied the 'net benefits' test, which we will hear more of if there is indeed a decline and a subsequent appeal).We consider that the level of media concentration brought about by the proposed merger would not be in the public interest. We have weighed the cost-savings arising from the merger against the increased levels of media concentration, the ability of the merged entity to influence opinions and lead the news agenda and the overall detriments to plurality. In an industry where there are substantial costs of entry to achieve the scale of a large news publisher, we consider that the loss of plurality that arises from the proposed merger is likely to be significant and potentially irreplaceable
Their final submission essentially said that the merged entity would not be a colossus bestriding the old-economy print media, but just one player in a much wider and rapidly evolving media market and one moreover with its own new-economy giants (the likes of Facebook and Google).
And on plurality, they argued (my paraphrase) that you'll lose some of the plurality you've currently got if the current standalone companies go down the gurgler, or as Russell McVeagh put it in an earlier letter to the Commission, "none of the alternative, potential wished for Plan Bs that have been postulated for either business make any difference to their financial trajectory, nor to their ability to maintain the quality of journalism which they currently produce".
One thing that struck me about the whole thing is the prominence of the "plurality" discussion, which partly reflects the effectiveness of some submissions (I'd pick out this one in particular, from a group of academics).
In overseas jurisdictions, plurality has generally been shoe-horned into merger authorisations as an additional but separate public interest that merger authorities are allowed to take into account, over and above the usual nitty-gritty of expected changes to competition. As this article notes, for example, the EU allows for additional consideration of "three legitimate public interests...public security, plurality of the media and prudential rules (of relevance in the area of financial services)".
I have trouble seeing it that way. Media plurality seems to me to fall squarely within the usual competitive effects analysis. When we are looking at effects on consumers, for example, we tend to focus on the money price - will the merged entity charge more, or offer less - but we can forget that "price" is really just a shorthand for the whole menu of consumer effects, sometimes described by the SPQR acronym: service, price, quality, range. If the end result of a media merger is clickbait tat (quality) from a 600 pound gorilla (range), there's your result. I don't need to start wandering off-piste into what is the appropriate social infrastructure for a liberal democracy.
To that extent that it looked as if the Commission was doing that, I can see where NZME/Fairfax were coming from: "The Applicants’ view was that issues of media plurality are not relevant to our analysis and fall outside of the scope of the merger authorisation process" as the Commission said (draft decision, para 905). But on the substance, I think NZME/Fairfax were wrong: plurality and quality fit squarely within the usual competitive effects box.