Do Merger Simulation and Critical Loss Analysis Differ Under the SLC and Dominance Test?

In this article we will evaluate whether the application and the efficiency of two types of empirical analysis in the assessment of mergers in jurisdictions applying the dominance and the SLC tests are different due to the application of the different legal substantive test. Thus, we will consider whether the different legal substantive test leads to different application of the empirical analysis or to different assessment of mergers leading to non-coordinated effects by courts, based on the same empirical analysis.We will address two methods of empirical analysis that concern two essential stages in the assessment of a merger. One such type of empirical analysis refers to the assessment of the unilateral effects of the merger on competition and one that is used in the definition of the relevant market. These two methods are the merger simulation and the critical loss analysis respectively. We will investigate their theoretical background and see how these two methods are applied in practice in cases brought before courts in jurisdictions applying the dominance test and the SLC test. The jurisdictions we will focus in this article are the USA and the European Union. The next part of this article briefly deals with the SLC and the dominance test. The second part of this article deals with the mechanics and the case law behind the two above-mentioned empirical methods. Finally, in the last part of this article we will evaluate whether the methodology behind merger simulation, used in the evaluation of the competitive effects, and critical loss analysis, used in market definition, varies depending on the substantive test that competition authorities apply to assess mergers.