At the end of February the Commerce Commission published an interesting "look back" review of what it could learn from how its merger decisions have been made. As the Commission said, "The purpose of our ex-post merger reviews is not to determine whether the original decision of the Commission was correct or incorrect, compared to alternative decisions available to the Commission at the time. Instead, our reviews evaluate key factors of a decision and assess whether the Commission’s predictions have eventuated as expected".
That's fair enough. It's always going to be hard to figure out, with the passage of time, what would have happened (the 'counterfactual') if the Commission had made a different call. That's not to say it's a completely hopeless exercise. It could well be worthwhile at least looking for some (however inconclusive) indications of correctness: post-merger, did prices go up for reasons that weren't obviously related to the likes of input costs? Did innovation slow down? Did consumers see the benefit of the efficiencies the merger claimed to enable? But I accept that you may not get any clearly definitive answers, unambiguously linking the merger to unwelcome outcomes, and in that case the more limited objective of seeing whether you read the winds right at the time may be the best you can do.
And it is well worth doing. For one thing, there's been something of a global pushback against competition authorities that may have been too "soft" on mergers - wrongly seeing, for example, adequate competitive constraint on the post-merger entity when, in fact, there wasn't a realistic prospect of new entry or of expansion by existing competitors. For another, we don't do enough in New Zealand to go back and see if policies and plans and decisions worked out like we thought they would, and if not, why not. And finally it shows a pleasing openness to shed some light on the Commission's processes in an environment when some other agencies have been unnecessarily secretive (eg in their recent round of Briefings to Incoming Ministers) on what the issues are in their bailiwick and what they think about them.
The Commission has, apparently, been doing these post-merger reviews quietly in the background for a while: "The Commission first undertook some ex-post reviews of past merger decisions in 2015 [I'll come back to that one in a moment], focussing on cases between 2011 and 2013. A similar exercise was undertaken in 2016, looking at merger decisions made in 2013 and 2014. The Commission renewed the practice in 2019 with a review of six merger decisions made between 2014 and 2016. This process was replicated in early 2023, looking at merger decisions made between 2017 and 2019". But this is the first time the Commission has officially published its findings, and it covers the six reviewed in 2019 and the seven reviewed in 2023 (although in the end the Commission wasn't able to finish reviews of two of them, so 11 made it through to the final analysis).
The big takeaways? The Commission thinks that market participants are too blasé about the likelihood of new entry/expansion and about the ability and incentive, post merger, of consumers being able to exercise countervailing power, and it's going to be asking for harder (and preferably documentary) evidence on both fronts. And in dynamic markets - where there may be rapidly changing consumer fads and fashions (like tastes in the yoghurt market, in one of the reviewed cases) or where new technologies are being rolled out every other day - it may not make much sense to spend a lot of time on market definition, and it would make more sense to ask, post merger, will the merged entity be better able to get away with bad stuff or will it still face adequate competitive constraint.
The Commission said that this is the first time it has published the findings of these post-merger reviews, and strictly speaking that's true, but the results of the 2015 review are also in the public domain: I wrote about them at the time ('More on entry'). They were given as a presentation at the New Zealand Association of Economists' 2015 annual conference, very likely on the basis of "these are the views of the presenters not the Commission's". Interestingly, it came to similar conclusions about being suitably hardnosed about the likelihood of new entry, particularly where there may be high sunk costs (which might deter a potential entrant if entry were at risk of going pear shaped) or where entry is from overseas (particularly if they have bigger fish to fry than the New Zealand market).
Unfortunately the presentation isn't on the NZAE website (only a short and not very informative abstract), and while it used to be on the Commission's website, it doesn't appear to be now. If you're trying to track it down - I found it as an e-resource on the Auckland Library website, or you may have academic access to the paywalled economics journals - then you're looking for Lilla Csorgo and Harshal Chitale, "Targeted ex post evaluations in a data-poor world", in the 'Special Issue on Advances in Competition Policy and Regulation', New Zealand Economic Papers, 2017, Vol. 51, No. 2, pp136–147.
