1 United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting).

2 See Arthur Austin, Antitrust Reaction to the Merger Wave: The Revolution v. the Counter revolution, 66 N.C. L. Rev. 931, 944 (1988).

3 See Federal Trade Comm'n v. University Health, Inc., 938 F.2d 1206, 1225 (11th Cir. 1991); United States v. Rockford Mem'l Corp., 898 F.2d 1278, 1286 (7th Cir. 1990); Hospital Corp. of Am. v. Federal Trade Comm'n, 807 F.2d 1381, 1393 (7th Cir. 1986), cert, denied, 481 U.S. 1038 (1987); Federal Trade Comm'n v. Columbia Hosp. Corp., No. 93-30-CIV FTM-22D, 1993 WL 183557 (M.D. Fla., preliminary injunction issued May 21, 1993); In re American Med. Int'l, Inc., 104 F.T.C. 1, 239 (1984). But see United States v. Carilion Health Sys., 707 F. Supp. 840, 849 (W.D. Va.), aff'd, 892 F.2d 1042 (1989) (holding that the government failed to prove that the planned merger would consti tute unreasonable restraint of trade); In re Adventist Health System/West, 5 Trade Reg. Rep. (CCH) ¶ 23,591, at 23,255 (Aug. 1, 1994) (FTC opinion holding that the evidence did not support the rele vant geographic markets alleged in the Commission’s complaint).

4 See 2 Miles, John J., Health Care & Antitrust Law § 12:1, at 12-3 n.4 (1993).Google Scholar

5 See, e.g., Bingaman, Anne K., The Importance of Antitrust in Health Care, Speech Before the University of Utah College of Law (Oct. 5, 1994), in 4 Miles,Google Scholar supra note 4, app. E46-1, at App. E46-3 (1996) (speech given as the Assistant Attorney General, U.S. Department of Justice); Charles F. Rule, Health Care and Antitrust Enforcement: The Buyer’s Eye-View, Speech Before the Group Health Association of America (Feb. 28, 1989), in 4 Miles, supra, app. E14-1, at App. E14-1 (speech given as the Assistant Attorney General, Antitrust Division, U.S. Department of Justice).

6 See Bazzoli, Gloria J. et al., Federal Antitrust Merger Enforcement Standards: A Good Fit for the Hospital Industry?, 20 J. Health Pol. Pol'y & L. 137, 149 (1995)CrossRefGoogle ScholarPubMed; Entin, Fredric J. et al., Hospital Collaboration: The Need for an Appropriate Antitrust Policy, 29 Wake Forest L. Rev. 107, 115-16 (1994)Google Scholar; Glazer, David L., Clayton Act Scrutiny of Nonprofit Hospital Mergers: The Wrong Rx for Ailing Institutions, 66 Wash. L. Rev. 1041, 1055 (1991).Google Scholar

7 See Federal Trade Comm'n v. Butterworth Health Corp., 946 F. Supp. 1285, 1303 (W.D. Mich. 1996); Federal Trade Comm'n v. Freeman Hosp., 911 F. Supp. 1213, 1228 (W.D. Mo.), aff'd, 69 F.3d 260, 273 (8th Cir. 1995); United States v. Mercy Health Servs., 902 F. Supp. 968, 989 (N.D. Iowa 1995), vacated as moot, 107 F.3d 632, 634 (8th Cir. 1997).

8 See, e.g., Freeman Hosp., 69 F.3d at 268-72 (discussing precedent); Mercy Health, 902 F. Supp. at 975-87 (same).

9 15 U.S.C. § 18 (1996).

10 See Brown Shoe Co. v. United States, 370 U.S. 294, 315-23 (1962); see also Fisher, Alan A. & Lande, Robert H., Efficiency Considerations in Merger Enforcement, 71 Cal. L. Rev. 1580, 1591- 93 (1983)CrossRefGoogle Scholar (discussing legislative history of the Clayton Act).

11 See Areeda, Philip E. & Hovenkamp, Herbert , Antitrust Law ¶ 905'h, at 751-53 (Supp. 1996)Google Scholar; 4 Areeda, Phillip & Turner, Donald F., Antitrust Law ¶ 905, at 14-21 (1980).Google Scholar

12 See infra notes 20-21 and accompanying text.

13 See United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 356 (1963).

14 See id. at 356.

15 See id. at 362.

16 See id. at 363.

17 See id. at 364 (stating that competition is clearly threatened when the combined share of merging banks constitutes over 30% of the market and the concentration level of the five largest banks constitutes 78% of the market).

18 Id.

19 See id. at 363 (observing that defendants must produce evidence clearly showing that the merger would not have an anticompetitive effect).

20 See United States v. General Dynamics Corp., 415 U.S. 486, 501 (1974). See also United States v. Marine Bancorporation, Inc., 418 U.S. 602, 603 (1974), in which the Supreme Court, with out explanation, reiterated the Philadelphia National Bank presumptive rule but did not state that defendant’s rebuttal evidence needed to clearly establish that the merger will not have anticompetitive effects.

21 In United States v. Baker Hughes Inc., then-judge Clarence Thomas viewed the effects of General Dynamics as undermining almost completely the presumptive force of statistical evidence:

908 F.2d 981, 992 (D.C. Cir. 1990) (citation omitted).

22 Unlike other areas of antitrust law, the great majority of merger challenges are brought by government enforcement agencies: the FTC, the Antitrust Division of the U.S. Department of Justice and the state attorneys general. Standing requirements and the lack of damages explain the paucity of private challenges. For a notable recent exception in which a private medical clinic challenged a hospital merger after the FTC entered into a limited consent decree with the parties, see Santa Cruz Medical Clinic v. Dominican Santa Cruz Hospital, No. C93 20613 RMW, 1994 WL 619288 (N.D. Cal. Oct. 26, 1994) (finding plaintiff did have standing to sue).

23 See Response of the United States to Defendants’ Proposed Findings of Facts and Conclu sions of Law at 57, United States v. Rockford Mem'l Corp., 717 F. Supp. 1251 (N.D. 111. 1989) (No. 88-C-20186) (stating that “a merger that reduces the number of competitors from three to two … with a market share of over 70 percent in a market where entry is unlikely violates Section 1”).

24 See Hospital Corp. of Am. v. Federal Trade Comm'n, 807 F.2d 1381, 1385-89 (7th Cir. 1986), aff'g 106 F.T.C. 361 (1985).

25 U.S. Dep'T Of Justice & Federal Trade Comm'N, Merger Guidelines—19921, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104, at 20,569 (Apr. 17, 1997)Google Scholar [hereinafter Merger Guidelines].

26 Although the Guidelines contain the caveat that they do not attempt to assign or adjust the burden of proof or going forward with evidence, see Merger Guidelines, supra note 25, § 0.1 (May 5, 1992), they proceed to discuss in detail the presumptive consequences of certain levels of concentration and market share. See id. §§ 1.5, 1.51 (Apr. 7, 1992); see also infra note 27 (discussing horizontal mergers). Moreover, despite disclaimers that the Guidelines do not affect the position that the agencies will take in court, it is widely recognized that they are intended to influ ence the direction of merger jurisprudence in the federal courts and that they are likely to shape future litigation strategy. See Merger Guidelines, supra note 25, § 0.1 (May 5, 1992); see also Areeda & Hovenkamp, supra note 11, ¶ 905'h, at 752 (discussing the government’s approach to merger analysis).

27 Using the Herfindahl-Hirschman Index (HHI) as a measure of pre- and post-merger concen tration levels, the Guidelines attach only modest consequences to high concentration levels and large increases in the HHI index. See Merger Guidelines, supra note 25, § 1.51(c) (Apr. 7, 1992) (stating that post-merger increases that exceed 100 points in “highly concentrated markets" are pre sumed to create or enhance market power or facilitate its exercise; but the presumption “may be overcome by a showing that the [other, nonstatistical market] factors make it unlikely" that such effects will occur); see also id. § 1.51(b) (stating that post-merger increases of more than 100 points in “moderately concentrated markets … potentially raise significant competitive concerns depending on [other, nonstatistical market] factors”).

28 See id. § 1.51(c).

29 See id. §2.1.

30 See id. § 2.211.

31 See id. § 2.22.

32 See id. §§ 3.0-.4.

33 See id. § 1.521.

34 See, e.g., United States v. Philadelphia National Bank which holds that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. 374 U.S. 321, 363 (1963).

35 See Lande, Robert H. & Langenfeld, James, From Surrogates to Stories: The Evolution of Federal Merger Policy, Antitrust, Spring 1997, at 5Google Scholar, 6 (noting that “enforcers ultimately care about [a] firm’s ability to raise price after a merger”).

36 See Denis, Paul T., An Insider’s Look at the New Horizontal Merger Guidelines, Antitrust, Summer 1992, at 6, 6Google Scholar; Lande & Langenfeld, supra note 35, at 6-7.

37 Areeda & Hovenkamp, supra note 11, ¶ 905'h, at 752.

38 See id. (stating that “neither the stability and clarity of the underlying economic theory nor the ability of courts to manage that theory has improved sufficiently to warrant a departure from [the presumptive approach]”).

39 See Baker, Jonathan B., Unilateral Competitive Effects Theories in Merger Analysis, Antitrust, Spring 1997, at 21, 21Google Scholar; Shapiro, Carl, Mergers with Differentiated Products, Antitrust, Spring 1996, at 23, 23-24.Google Scholar

40 See Baker, supra note 39, at 21 (noting that “[u]nilateral theories are now by far the most common in the internal analyses of the antitrust agencies”).

41 See Merger Guidelines, supra note 25, § 2.0 (Apr. 7,1992).

42 See id.

43 See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394-96 (1956) (noting that “commodities reasonably interchangeable by consumers for the same purposes" constitute the relevant product market); Twin City Sportservice, Inc. v. Charles O. Finley & Co. 512 F.2d 1264, 1271 (9th Cir. 1975) (discussing the high cross-elasticity of demand for similar products), cert, de nied, 459 U.S. 1009(1982).

44 See generally Elzinga, Kenneth G. & Hogarty, Thomas F., The Problem of Geographic Mar kets in Antimerger Suits, 18 Antitrust Bull. 45, 45 (1973)Google Scholar (discussing geographic market defini tion).

45 Merger Guidelines, supra note 25, §§ 1.11,1.21 (Apr. 7,1992).

46 See id.§ 1.11.

47 See id. § 1.21.

48 See 1 Furrow, Barry R. ET AL., Health Law § 10-55, at 738 (1995)Google Scholar (stating “the concept of a market is probably best understood as an expression of the essential principals [sic] that must guide factual determinations rather than a precise analytic tool”).

49 2A Areeda, Phillip E. ET AL., Antitrust Law ¶ 538b, at 205 (1995)Google Scholar (noting that subjective testimony by customers that they would or would not defect in response to a price increase is unreli able).

50 See Merger Guidelines, supra note 25, §§ 1.11, 1.21 (Apr. 7, 1992) (identifying as rele vant evidence responses to past price increases, the timing and costs of switching and proof that sellers base business decisions on the prospect of buyer substitution).

51 See Sullivan, E.Thomas & Hovenkamp, Herbert, Antitrust Law, Policy And Procedure 818 (3d ed. 1994)Google Scholar; Schaerr, Gene C., Note,The Cellophane Fallacy and the Justice De partment’s Guidelines for Horizontal Mergers, 94 Yale l.j. 670, 675 (1985).CrossRefGoogle Scholar

52 See Schaerr, supra note 51, at 676.

53 See Merger Guidelines, supra note 25, § 1.11 (Apr. 7, 1992). This reflects a policy change from earlier versions of the Merger Guidelines which had adopted a standard based on pre vailing prices apparently on the grounds that the Clayton Act was designed to prohibit only those mergers that enhanced market power. See Sullivan & Hovenkamp, supra note 51, at 818; William F. Baxter, Responding to the Reaction: The Draftsman’s View, 71 CAL. L. REV. 618, 620, 622 (1983).

54 The Merger Guidelines cope with the problem by adopting a presumption that pre-merger prices are competitive. They provide that the enforcement agencies will use prevailing prices to perform the test “unless circumstances are strongly suggestive of coordinated interaction, in which case the Agency will use a price more reflective of the competitive price.” Merger Guidelines, supra note 25, § 1.11 (Apr. 7, 1992).

55 See id.

56 The statements were originally issued in 1993, see U.S. Dep'T Of Justice & Federal Trade Comm'N, Statements Of Antitrust Enforcement Policy In The Health Care Area, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,151, at 20,755 (Sept. 5, 1993)Google Scholar, and were revised and expanded in September 1994. See U.S. Dep'T Of Justice & Federal Trade Comm'N, Statements Of An Titrust Enforcement Policy And Analytical Principles Relating To Health Care And Antitrust, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,152, at 20,769 (Sept. 30, 1994)Google Scholar [hereinafter Enforcement Policy].

57 See Enforcement Policy, supra note 56, at 20,774 (setting forth nine statements regarding, inter alia, mergers, joint ventures, joint purchasing agreements, and multiprovider networks). The guidelines state that “[t]he Agencies will not challenge any merger between two general acute-care hospitals where one of the hospitals (1) has an average of fewer than 100 licensed beds . . . and (2) an average daily inpatient census of fewer than 40 patients . . . [unless] that hospital is less than 5 years old.” Id.

58 See, e.g., Minn. Stat. Ann. § 62J.2911-2921 (West 1996); N.D. Cent. Code § 23-17.5-11 (1993). See generally Blumstein, James F., Health Care Reform and Competing Visions of Medical Care: Antitrust and State Provider Cooperation Legislation, 79 Cornell L. Rev. 1459, 1486 (1994)Google ScholarPubMed (describing immunity statutes designed to facilitate cooperation among hospitals and other health care providers); Kondo, Tina E., State Enforcement Views, in Antitrust And Health Care: New Approaches And Challenges 1, 1-8Google Scholar (Health Law Section & Section of Antitrust Law, American Bar Ass'n Oct. 1996) (summarizing the regulatory orders of certain states which grant state approval for health care transactions).

59 See, e.g., Pennsylvania v. Capital Health Sys. Servs., No. CIV.A.4:CV-95-2096, 1995 WL 787534, at *2 (M.D. Pa. Dec. 15, 1995) (ordering the merged entity to pass on at least 80% of the net cost savings to consumers “in the form of low-cost or no-cost health-care programs for the com munity or by reducing prices or limiting actual price increases for existing services”). See generally Greaney, Thomas L., Regulating for Efficiency in Health Care Through the Antitrust Laws, 1995 Utah L. Rev. 465, 486-89Google Scholar (discussing how administrative agencies “have subtly shifted the locus of much decision-making authority in federal antitrust matters to themselves and away from the federal courts”).

60 See Baer, William J., Current Issues in Health Care Antitrust Enforcement at the Federal Trade Comm'n, Address Before the American Bar Association (Oct. 24, 1996)Google Scholar, available in 1996 WL 613763 (address given as Director, Bureau of Competition, Federal Trade Commission).

61 See Sims, Joe, A New Approach to the Analysis of Hospital Mergers, 64 Antitrust L.J. 633, 635 (1996).Google Scholar

62 Between 1987 and 1991, the FTC and DOJ investigated only 27 out of some 229 hospital mergers; only five of those investigations resulted in challenges. See 1 Antitrust Section, American Bar Ass'N, Annual Review Of 1992 Antitrust Law Developments 301 (1993).Google Scholar

63 See, e.g., United States v. Rockford Mem'l Corp., 898 F.2d. 1278, 1284 (7th Cir. 1990) (reviewing a market that consisted of inpatient acute care services). In the recent cases, the parties stipulated that the relevant product market was inpatient general acute care services. See, e.g., United States v. Mercy Health Servs., 902 F. Supp. 968, 976 (N.D. Iowa 1995); In re American Med. Int'l, 104 F.T.C. 1, 192-94 (1984). But see United States v. Carilion Health Sys., 707 F. Supp. 840, 847 (W.D. Va.) (stating that a relevant product market includes “not only other inpatient hospitals but also various outpatient clinics that treat medical problems for which patients might otherwise have sought treatment in an inpatient hospital setting”), aff'd, 892 F.2d 1041, 1042 (4th Cir. 1989) (unpublished opinion).

64 The point is summarized by Judge Posner:

Rockford, 898 F.2d at 1284.

65 See 2 Miles, supra note 4, § 12:9, at 12-27 (noting that “courts and the Federal Trade Commission thus far (except Carilion) have defined the relevant product market simply as inpatient services provided by short-term general acute care hospitals”); see also infra Part III.C (discussing Federal Trade Comm'n v. Butterworth Health Corp., 946 F. Supp. 1285 (W.D. Mich. 1996), which recognized that general acute care inpatient hospital services and primary care inpatient services are both relevant product markets).

66 See, e.g., United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1261-78 (N.D. 111. 1989) (describing geographic markets). But see Mercy Health, 902 F. Supp. at 986 (criticizing Rockford’s assumptions).

67 See Federal Trade Comm'n v. Freeman Hosp., 69 F.3d 260, 268 (8th Cir. 1995) (noting fail ure of the government to prove that patient flow to distant hospitals was to obtain sophisticated care or services unavailable in local facilities); Rockford, 717 F. Supp. at 1277 (discounting importance of flow of tertiary referral patients in constraining exercise of market power because many travel for services not offered by local hospitals).

68 See Mercy Health, 902 F. Supp. at 976 (citing United States v. Citizens & S. Int'l Bank, 422 U.S. 86, 120-21 (1975)).

69 See Rockford, , 898 F. Supp. at 1278-91Google Scholar (looking at factors such as concentration, barriers to entry and the nature of competition and market participants in order to determine whether practices are likely to be anticompetitive).

70 See, e.g., Mercy Health, 902 F. Supp. at 987.Google Scholar

71 See, e.g., Rockford, , 898 F.2d at 1285Google Scholar (finding defendant’s efficiencies evidence incomplete and questioning whether the claimed efficiencies were solely due to the merger, and requiring clear and convincing evidence showing that the benefits of the efficiencies outweighed the anticompeti tive effects of the merger); Mercy Health, 902 F. Supp. at 976Google Scholar (holding that if the defendant is suc cessful in rebutting the government’s statistical evidence, the government then has the burden of presenting additional evidence that the merger will lessen competition).

72 See, e.g., Choslovsky, Jonathan, Agency Review of Health Care Industry Mergers: Proper Procedure or Unnecessary Burden?, 10 Admin. L.J. Am. U. 291, 305-09, 319-24 (1996)Google Scholar (recommending procedural reforms to clarify standards and reduce uncertainty, and responding to criticisms that health care antitrust decisions are inconsistent).

73 See Jaklevic, Mary Chris, Survey: PHOs a Popular Managed Care Strategy, Mod. Healthcare, Feb. 5, 1996, at 33, 33Google ScholarPubMed (reporting that 71% of hospitals sponsored physician-hospital organizations); Scott, Lisa, Purchasing Groups Add to Their Bulk, Mod. Healthcare, Sept. 23, 1996, at 54, 54Google Scholar (reporting that the 10 largest group purchasing organizations accounted for 60% of all supply purchases by nonfederal hospitals in 1995); Scott, Lisa, Will We Like Tomorrow’s Giants?, Mod. Healthcare, Aug. 5, 1996, at 79, 79-80Google Scholar (citing estimates that 2.4 mergers and acquisitions occurred per day among all types of providers in the first half of 1996, one hospital merger occurred every three days in the past 2.5 years and one-fifth of all community hospitals changed ownership in 1994-1995).

74 See Hitchner, Carl H. et al., Integrated Delivery Systems: A Survey of Organizational Models, 29 Wake Forest L. Rev. 273,273-74,279 (1994).Google Scholar

75 See Ayres, Ian, Rationalizing Antitrust Cluster Markets, 95 Yale L.J. 109, 114-15 (1985)CrossRefGoogle Scholar; Vita, Michael E. et al., Economic Analysis in Health Care Antitrust, 7 J. Contemp. Health L. & Pol'y 73, 80-85(1991).Google ScholarPubMed

76 For example, from the patient’s perspective, inpatient obstetrical services are not substitutes for chemotherapy services. Nor are they complements in the sense that offering one service makes provision of the other less costly. Whether the joint provision of the two services affords transaction cost savings in managed care contracting will depend on the costs in carving out certain services from the package that the buyer negotiates with hospitals.

77 See Baker, Jonathan B., The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 126 (1988)CrossRefGoogle ScholarPubMed (arguing that if there is no compelling reason to believe that demand and supply substitutability opportunities, entry conditions or market shares differ significantly across individual products, then the antitrust analysis will be similar for each good so they may conveniently be analyzed as a collection).

78 To depict economically meaningful markets accurately it is necessary to fine tune the clus ter, which includes only services that are purchased by buyers in a package because of complemen tarities or transaction cost savings. See id. at 126, 128. The trend in litigation has been to narrow the cluster, with the antitrust enforcement agencies eliminating tertiary care services, see United States v. Mercy Health Servs., 902 F. Supp. 968, 981-83 (N.D. Iowa 1995), or reducing the entire package to primary care services. See Federal Trade Comm'n v. Butterworth Health Corp., 946 F. Supp. 1285, 1291 (W.D. Mich. 1996).

79 See infra Part IV (discussing these limitations of data in the context of three specific court opinions).

80 See, e.g., Baker, supra note 39 (reviewing the unilateral theories of the adverse competitive effects of mergers and detailing an example); Shapiro, supra note 39 (discussing various supplemen tal methods used by the Antitrust Division of the DOJ to analyze unilateral effects in mergers involv ing differentiated products); Werden, Gregory J. & Froeb, Luke, The Effects of Mergers in Differen tiated Products Industries: Logit Demand and Merger Policy, 10 J.L. Econ. & Org. 407 (1994)Google Scholar (examining the effects of mergers under a logit demand system model).

81 The 1982 Merger Guidelines stated that the Department of Justice was “more likely to chal lenge" mergers where the products of the merging firms were “particularly good substitutes for one another.” See U.S.Dep'T Of Justice, Merger Guidelines—1982, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,102, at 20,538 (Apr. 23, 1997)Google Scholar. In their current iteration, the Merger Guidelines expli cate in considerable detail the circumstances in which the enforcement agencies may apply unilateral effects theories to challenge a merger. See Merger Guidelines, supra note 25, § 2.2 (Apr. 7, 1992).

82 A number of conditions must be met however: the likelihood of the effect depends on, for example, whether other hospitals in the market can reposition themselves and the nature of consum ers’ demand for hospitals’ services. See Baker, supra note 39, at 21-22 (discussing necessary con ditions in the context of an auction model merger hypothetical); see also Shapiro, supra note 39, at 23.

83 See Lande & Langenfeld, supra note 35, at 7.

84 See id. at 6; see also Merger Guidelines, supra note 25, § 2.21 (Apr. 7, 1992) (discussing unilateral effects in price resulting from mergers between firms distinguished primarily by differen tiated products).

85 See Jensen, Gail A. et al., The New Dominance of Managed Care: Insurance Trends in the 1990s, Health Aff., Jan./Feb. 1997, at 125, 126.CrossRefGoogle ScholarPubMed

86 See id. at 131 (stating that employers contributed on average 86% of the health insurance premium for employees with single coverage and over 66% of the premium for those with family coverage).

87 See id. at 127 (stating that 62% of all workers offered two or more plans).

88 See Morrissey, Michael A. et al., Small Employers and the Health Insurance Market, Health Aff., Winter 1994, at 149, 153.CrossRefGoogle Scholar

89 See id. at 152 (reporting that only two percent of small business employers offer more than one health insurance plan to its employees).

90 See Matthew, Dayna B., Doing What Comes Naturally: Antitrust Law and Hospital Mergers, 31 Hous. L. Rev. 813, 831-44 (1994).Google Scholar

91 See id. at 826-27.

92 See id. at 827.

93 See id. at 837-52 (summarizing studies which suggest an inverse relationship between hospi tal cost and concentration, but also noting that other studies suggest that this inverse relationship might not be due to a lack of competition).

94 See id. at 854-72 (stating that unlike other monopolies, natural monopolies are believed to benefit consumers through increased efficiencies).

95 See id. at 848.

96 See sources cited supra note 58.

97 See Federal Trade Comm'n v. Freeman Hosp., 69 F.3d 260, 266-73 (8th Cir. 1995) (discussing the FTC’s jurisdiction over nonprofit hospital mergers under the Clayton Act and the application of the appropriate standard of review to the merits of the instant case).

98 See id. at 263.

99 Judge Whipple initially denied preliminary relief to the FTC without holding an evidentiary hearing. See Federal Trade Comm'n v. Freeman Hosp., No. 95-5015-CV-SW-l, 1995 WL 228319, at *1 (W.D. Mo. Feb. 28, 1995). In so doing, the court mentioned in its opinion that “[i]t looks to me like Washington D.C. once again thinks they know better what’s going on in southwest Missouri. I think they ought to stay in D.C.” and told complaint counsel “I don't think you've got any business being in here.” Freeman Hosp., 69 F.3d at 263 (quoting judge at temporary restraining order hear ing). After remand from the court of appeals ordering an evidentiary hearing, the court conducted a two-day trial allowing each side to present only three witnesses. The court of appeals stated that it was “disturbed" about the “injudicious" remarks made by the district court judge but rejected the FTC’s claim that they exhibited bias against the agency. See id. at 272-73.

100 See Freeman Hosp., 69 F.3d at 266-73.

101 See id. at 262.

102 See id.

103 See id.

104 See Freeman Hosp., 911 F. Supp. at 1224-25.

105 See Freeman Hosp., 69 F.3d at 263 n.4.

106 See Freeman Hosp., 911 F. Supp. at 1226-27.

107 Id. at 1227.

108 See id.

109 See Freeman Hosp., 69 F.3d at 272.

110 See id. at 263 n.4.

111 See Freeman Hosp., 911 F. Supp. at 1222.

112 See id. at 1224.

113 See id. at 1225.

114 See id. at 1224-25.

115 See id. "Because reimbursement amounts for Medicare and Medicaid patients are dictated by the government, the exercise of monopoly power through higher prices has an adverse effect only on private-pay patients.” Id. at 1224.

116 Id. at 1223.

117 See id. at 1223-24 (discussing the opinions of third-party payors who expressed no objection to the merger).

118 See id. at 1224-25 (discussing the competitive significance of the proportion of a hospital’s private paying patients, the decline in a hospital’s total inpatient admissions and the degree to which a seller in a particular market can underprice its rivals).

119 See Freeman Hosp., 69 F.3d at 271-72 (stating that the “FTC failed to meet its burden of establishing the relevant geographical market”); Freeman Hosp., 911 F. Supp. at 1220 (holding that “[i]nformal, off-the-cuff remarks and anecdotal evidence concerning the marketplace are no substitute for solid economic analysis”).

120 Freeman Hosp., 69 F.3d at 269.

121 See id. at 269-72 (itemizing and discussing the insufficiencies of the FTC’s expert testi mony in support of the preliminary injunction); Freeman Hosp., 911 F. Supp. at 1226-27 (same).

122 See Freeman Hosp., 69 F.3d at 272-73; Freeman Hosp., 911 F. Supp. at 1227-28. To ob tain a preliminary injunction under section 13(b) of the Federal Trade Commission Act, the FTC must raise “questions going to the merits so serious, substantial, difficult and doubtful as to make them fair ground for thorough investigation, study, deliberation and determination by the FTC in the first instance and ultimately by the Court of Appeals.” Federal Trade Comm'n v. National Tea Co., 603 F.2d 694, 698 (8th Cir. 1979) (quoting Federal Trade Comm'n v. Beatrice Foods Co., 587 F.2d 1225, 1229 (D.C. Cir. 1978)). The Eighth Circuit rejected the FTC’s argument that the National Tea standard applied to its burden with respect to proving a relevant geographic market. See Freeman Hosp., 69 F.3d at 268 n.12.

123 See Freeman Hosp., 69 F.3d at 265. The district court adopted the alternative analysis of patient migration patterns offered by defendants’ expert, Dr. Lynk. See id. at 266. However, the Eighth Circuit accepted for purposes of appeal the FTC’s patient flow proof, but found it insufficient to establish a geographic market. See id. at 269 (noting that despite Dr. Lynk’s concerns that the analysis by the plaintiff’s expert, Dr. Leffler, was incomplete and incorrect, his analysis failed to resolve the market definition issue).

124 Id. at 269.

125 See id.

126 See United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1266-75 (N.D. 111. 1989), aff'd, 898 F.2d 1278 (7th Cir. 1990); see also Areeda ET AL., supra note 49,¶ 534a3, at 180 (stating that “antitrust authorities often have little choice but to rely on historical data of . . . trading pat terns. They must always recognize, however, that the inferences to be drawn are, at best, presump tions that must give way when reliable adjustments are feasible to take account of their deficien cies.”); Werden, Gregory J., The Limited Relevance of Patient Migration Data in Market Delineation for Hospital Merger Cases, 8 J. Health Econ. 363, 376 (1989)CrossRefGoogle ScholarPubMed (concluding that the most important issue in determining the geographic scope of hospital markets is whether an attempt to exercise mar ket power by raising prices would be thwarted by changes in patient migration). See generally Elz- inga & Hogarty, supra note 44, at 45 (noting that market is commonly defined as a seller of a par ticular product, a buyer of a particular product or a particular place of exchange).

127 See Freeman Hosp., 69 F.3d at 269.

128 See id.

129 Id.

130 Id. at 270 (emphasis added).

131 See Areeda ET AL., supra note 49, ¶ 538b, at 205-06.

132 See id. ¶¶ 538-538a, at 203-05.

133 See id. ¶ 538, at 203.

134 See Freeman Hosp., 69 F.3d at 269.

135 See id. at 270.

136 See id.

137 See id. The FTC advanced this testimony to establish that differences in quality and range of services differentiate Joplin hospitals from those in the markets identified by the defendants and tend to negate the assertions of the defendants’ experts that such hospitals are competitors merely because of their geographic proximity to Joplin. See id.

138 See id. The court noted that “the FTC could have compiled and analyzed the DRG [diagnostic-related group] records of hospitals potentially in the geographic market to determine whether significant differences exist.” Id. at 271.

139 902 F. Supp. 968, 989 (N.D. Iowa 1995). While the appeal was pending, the hospitals an nounced that they had abandoned plans to merge. See United States v. Mercy Health Servs., 107 F.3d 632, 635 (8th Cir. 1997). Although both the government and the defendants argued that the appeal was not moot because the parties had not foresworn the possibility of merging or forming an alliance in the future, see id., the Eighth Circuit dismissed the appeal and vacated the district court’s decision. See id. at 634.

140 See Mercy Health, 902 F. Supp. at 987.

141 See id. at 976.

142 See id.

143 See id. at 980. Although several small rural hospitals competed within a closer radius, the court found those hospitals could not similarly constrain the behavior of the merged hospital. See id.

144 See id.

145 In United States v. Rockford Memorial Corp., Judge Posner derisively rejected defendants’ proposed market:

146 See Mercy Health, 902 F. Supp. at 978. Proof of where patients could practically go “requires a fluid analysis. It is not sufficient to take a snapshot of the current situation and define the relevant geographic market to be synonymous with the current service areas of the defendant hospitals.” Id.

147 See id. at 978-79.

148 See id. at 979.

149 See id. at 979-80.

150 See id. at 978.

151 See id. at 977-83.

152 The court refused to accept the government’s proof that geographic price discrimination, such as raising prices to managed care enrollees within the city, could result from the merger. See id. at 981.

153 See id. at 981.

154 The court relied on past experience in which patients traveled to regional hospitals for cer tain services. See id. However, the services received were for the most part not available in Du buque or not even part of the acute care in-patient product market, such as elective plastic surgery. See Combined Reply/Response Brief of the United States at 8-9, United States v. Mercy Health Servs., 107 F.3d 632 (8th Cir. 1997) (Nos. 95-4253, 96-1051). By generalizing from experiences involving obviously dissimilar circumstances and disparate, highly differentiated service markets, the court appears to have engaged in clearly erroneous reasoning. In addition, the court seemed persuaded by evidence that financial incentives from managed care organizations had induced some patients to choose regional hospitals for specific care; for example, some witnesses suggested that payments of $200-1000 would induce patients to travel distances to receive nonsurgical cancer treatment or heart care. See Mercy Health, 902 F. Supp. at 982. This evidence however does not negate the substantial evidence that individuals would not buy insurance contracts with managed care requirements that would remove all local options for care. Even if point of service plans were offered, the potential switching for certain services would pose no credible threat to a dominant local hospital on which subscribers would still depend for their local needs.

155 See id. at 987-88.

156 For example, the court stressed evidence of travel to distant markets for services that were not a part of the product market, patient shifting with an extremely limited number of patients and evidence that certain physicians shifted patients away for nonfinancial reasons. See id. at 981.

157 See id.; United States’ Brief at 12-17, Mercy Health (Nos. 95-4253, 96-1051).

158 See United States’ Brief at 11-12, 15, Mercy Health (Nos. 95-4253, 96-1051).

159 See Mercy Health, 902 F. Supp. at 978-80. The government also adduced evidence ad dressing the quantity of switching (the “critical loss ratio”) necessary to defeat supracompetitive pricing after the merger. See id. at 981. According to the government’s expert witness, this evi dence tended to prove that an extraordinary number of individuals (46% of all managed care pa tients) would have to be willing to pass up local hospitals and travel 70-100 miles. See id. How ever, the court specifically rejected the government’s contention that such a degree of switching would not occur, finding that it rested on erroneous assumptions regarding the strength of patient- physician loyalty and the willingness of persons within 25 miles of Dubuque to switch to hospitals outside Dubuque. See id.

160 See id. at 981-82.

161 The court found the merging hospitals found little significant competition except for the regional hospitals located 60-70 miles away, see id. at 982, but made no specific findings about the pre-merger intensity of competition in the market. And indeed, defendants contended that the merging hospitals “[had] not competed vigorously in the past.” See Brief of Appellees/Cross-Appellants Mercy Health Services and Finley Tri-States Health Group, Inc. at 3, Mercy Health (Nos. 95-4253,96-1051).

162 See supra notes 51-53 and accompanying text.

163 See Mercy Health, 902 F. Supp. at 989.

164 The defendant had claimed over $2.1 million in savings would result from “best practices,” i.e., improving efficiency in utilization and avoidance of duplication of expenses. The court doubted that the merger was necessary to accomplish these goals given the ready availability of information from a myriad of sources that would accomplish similar purposes. See id. at 988.

165 See id. at 988-89.

166 946 F. Supp. 1285 (W.D. Mich. 1996).

167 See id. at 1302-03.

168 See id. at 1288.

169 See id.

170 See id. at 1288-89.

171 The Kent County Area Health Care Facilities Commission concluded that existing hospital space for inpatient services was sufficient and suggested that Blodgett consider “reorganizing its present facilities onsite, consolidating inpatient services with other area hospitals and/or moving appropriate ambulatory and support services offsite.” Id. at 1289.

172 See Burda, David & Jaklevic, Mary Chris, Promises, Promises: Hospitals Are Using Price Control Pledges to Win Antitrust Clearance from States, But the Feds are Wary, Mod. Healthcare, Feb. 19, 1996, at 26, 26.Google ScholarPubMed

173 See Butterworth, 946 F. Supp. at 1289-94.

174 See id. at 1290.

175 See id. at 1291.

176 See id. at 1291.

177 See id.

178 See id. at 1293.

179 See id. at 1292-94.

180 See id.

181 See id. at 1294.

182 See id.

183 See id. at 1298 (finding that “the greater range of services and the perceived higher quality of care at defendant hospitals" would limit St. Mary’s and Metropolitan’s ability to compete with the merged entity).

184 See id.

185 See Proof Brief For Plaintiff-Appellant Fed. Trade Comm'n at 7-8, Federal Trade Comm'n v. Butterworth Health Corp., No. 96-2440 (6th Cir. argued June 9, 1997) (citing trial record); see also Butterworth, 946 F. Supp. at 1309 (reprinting defendants’ Exhibit A which stated that the con solidation activities and facilities plan may be adjusted to improve clinical services and patient ac cess to the merged hospital).

186 See Butterworth, 946 F. Supp. at 1299.

187 Id. at 1302. The court concluded that the two small hospitals in Grand Rapids, St. Mary’s and Metropolitan, would not be able to compete with the merged entity because of the greater range of services offered by Blodgett and Butterworth and that their ability to defeat a small but significant price increase by the merged entity “would be limited, especially for the foreseeable future.” See id. at 1298.

188 See id. at 1302.

189 See Easterbrook, Frank H. , The Limits of Antitrust, 63 Tex. L. Rev. 1, 12 (1984).Google Scholar

190 See supra note 59 and accompanying text; see also Butterworth, 964 F. Supp. at 1303 (ordering parties to follow consent decree incorporating “community commitment" terms).

191 See Federal Trade Comm'n v. University Health, Inc., 938 F.2d 1206, 1225 (11th Cir. 1991); United States v. Rockford Mem'l Corp., 898 F.2d 1278, 1286 (7th Cir. 1990).

192 See United States v. Mercy Health Servs., 902 F. Supp. 968, 989 (N.D. Iowa 1995). Two district courts gave some weight to the nonprofit status of merging hospitals after cursory analysis, but both approved the mergers on other grounds. See Federal Trade Comm'n v. Freeman Hospital, 911 F. Supp. 1213, 1226-28, aff'd, 69 F.3d 260, 273 (8th Cir. 1995); United States v. Carilion Health Sys., 707 F. Supp. 840, 847-49 (W.D. Va.), aff'd on other grounds, 892 F. 2d 1042 (4th Cir. 1989).

193 See In re Hospital Corp. of Am., 106 F.T.C. 361, 502 (1985), aff'd, 807 F.2d 1381, 1393 (7th Cir. 1988).

194 See Butterworth, 946 F. Supp. at 1297.

195 See id. at 1296-97. The court relied on expert studies showing that high market concentra tion among nonprofit hospitals does not cause higher prices and, in fact, may result in lower prices. See id. (citing Lynk, William J., Nonprofit Hospital Mergers and the Exercise of Market Power, 38 J.L. & Econ. 437, 459 (1995))CrossRefGoogle Scholar; see also Hoerger, Thomas J., ‘Profit’ Variability in For-Profit and Not-For-Profit Hospitals, 10 J. Health Econ. 259 (1991)CrossRefGoogle ScholarPubMed(proposing two tests to evaluate the hy pothesis that not-for-profit hospitals behave differently than for-profit hospitals).

196 See Butterworth, 946 F. Supp. at 1296-97.

197 See Brief for Fed. Trade Comm'n at 24, Butterworth (No. 96-2440).

198 The FTC strenuously asserted that Dr. Lynk’s analysis is flawed because it fails to hold constant cost differences among hospitals. See Butterworth, 946 F. Supp. at 1296. Lower prices in concentrated markets may really reflect the fact that rural hospitals tend to have lower costs and compete in less highly concentrated markets. See Brief for Fed. Trade Comm'n at 32-33, Butter worth (No. 96-2440).

199 See United States v. General Dynamics Corp., 415 U.S. 486, 498 (1974) (holding that sta tistics on market share and concentration are not conclusive indicators of anticompetitive effects and that forward-looking evidence may enable the court to discount the inferences drawn from such data); see also United States v. Brown Univ., 5 F.3d 658, 678 (3d Cir. 1993) (holding that noneconomic objectives of nonprofit defendants required full-scale rule of reason analysis for com petitive effects of challenged practices).

200 While rejecting similar claims in Rockford because they were premised on theoretical guesses, Judge Posner left open the possibility of accepting such a defense where defendants could offer studies and empirical evidence to support the presumption that high concentration among non profit hospitals does not result in higher prices. See United States v. Rockford Mem'l Corp., 898 F.2d 1278, 1286 (7th Cir. 1990).

201 For example, the FTC offered a wealth of evidence from internal planning documents and other sources demonstrating that Blodgett and Butterworth recognized that increased competitive pressures were forcing them to lower prices and adopt cost-control strategies. See Brief for Fed. Trade Comm'n at 28-30, Butterworth (No. 96-2440). Moreover, several studies of markets with considerably longer experience with competitive pressures than Michigan have found that price and concentration were positively correlated. See Dranove, David et al., Is Hospital Competition Waste ful?, 23 Rand J. Econ. 247, 247-48 (1992)CrossRefGoogle Scholar (using a third-party study to reexamine the hypothesis that hospitals compete by providing too many high-tech hospital services, and concluding that the extent of a market, proximate population and distance to markets predict the pattern of service pro vision); Dranove, David et al., Price and Concentration in Hospital Markets: The Switch from Pa tient-Driven to Payer-Driven Competition, 36 J.L. & Econ. 179, 187, 201 (1993)CrossRefGoogle Scholar (discussing a study of price changes received by private hospitals in California for the treatment of privately insured inpatients, and finding that profit margins are lower where local market concentration is lower); Melnick, Glenn A. et al.; The Effects of Market Structure and Bargaining Position on Hospital Prices, 11 J. Health Econ. 217, 229 (1992)CrossRefGoogle ScholarPubMed (discussing the results of a study of the Blue Cross of California PPO network which found that less competitive markets engender higher prices); see also Vita et al., supra note 75, at 78 (stating that a hospital’s ability to exercise market power decreases if consumers perceive other local hospitals as economic substitutes); Zwanziger, Jack et al., Hospitals and Antitrust: Defining Markets, Setting Standards, 19 J. Health Pol. Pol'y & L. 423, 428-29 (1994)CrossRefGoogle ScholarPubMed (noting that the more hospitals within an insurer-dominated market are able to offer compa rable services and quality, “the more imperative it becomes that [they] be competitive in price”).

202 See Butterworth, 946 F. Supp. at 1297.

203 See id. at 1296.

204 The court cited approvingly Dr. Lynk’s contentions that hospitals with such governance structures were analogous to consumer cooperatives and lacked incentives to raise prices to monopoly levels. See id.

205 See id. at 1297.

206 See id. at 1296.

207 See Hamilton, Robert W., Reliance and Liability Standards For Outside Directors, 24 Wake Forest L. Rev. 5, 9 (1989)Google Scholar (observing that “[m]odern boards of directors have practically nothing to do with the day-to-day business of the corporation”); see also Furrow ET AL., supra note 48, § 5-2, at 257-61 (describing for-profit corporations); id. § 5-11, at 292-94 (outlining distinguishing char acteristics of nonprofit corporations); id. § 5-12, at 295-96 (describing nonprofit corporate govern ance); Kurtz, Daniel L., Board Liability: Guide For Nonprofit Directors 6 (1988)Google Scholar (describing distinctive features of nonprofit boards).

208 See Furrow ET AL., supra note 48, §§ 5-14 to -17, at 297-306.

209 See Butterworth, 946 F. Supp. at 1297.

210 See id. at 1303.

211 See id. at 1298.

212 See id. at 1299.

213 See id.

214 See Antel, John J. et al.,State Regulation and Hospital Costs, 77 Rev. Econ. & Stat. 416, 420-22 (1995).CrossRefGoogle Scholar

215 See id.

216 See Pennsylvania v. Capital Health Sys. Servs., No. Civ.A.4:CV-95-2096, 1995 WL 787534, at *2 (M.D. Pa. Dec. 15, 1995); Greaney, supra note 59, at 487-88 (describing highly pre scriptive consent decrees in Massachusetts and Pennsylvania).

217 See generally Greaney, supra note 59, at 475-82 (discussing efficiency’s role in the DOJ/FTC Health Care Policy Statements, which are used to evaluate potential antitrust litigation).

218 See Federal Trade Comm'n v. Butterworth Health Corp., 946 F. Supp. 1285, 1298-99 (W.D. Mich. 1996).

219 See id. at 1298-1300.

220 See id. at 1299.

221 There is a great deal of literature applying this analysis to criticize anti-price discrimination aspects of antitrust law, such as the Robinson-Patman Price Discrimination Act, 15 U.S.C. §§ 13- 13b, 21a (1994). See, e.g., Celnicker, Arnold, A Competitive Analysis of Most Favored Nations Clauses in Contracts Between Health Care Providers and Insurers, 69 N.C. L. Rev. 863, 884-91 (1991)Google Scholar (summarizing criticisms of the Robinson-Patman Act, but explaining the much greater anti competitive effects of most favored nations clauses).

222 See Butterworth, 946 F. Supp. at 1301.

223 See, e.g., Celnicker, Robert H., The Antitrust Paradox: A Policy At War With Itself 127 (1978)Google Scholar; Brodley, Joseph F., Proof of Efficiencies in Mergers and Joint Ventures, 64 Antitrust L.J. 575 (1996)Google Scholar; Fisher & Lande, supra note 10, at 1592; Kattan, Joseph, Efficiencies and Merger Analy sis, 62 Antitrust L.J. 513 (1994)Google Scholar; Pitofsky, Robert, Proposals for Revised United States Merger Enforcement in a Global Economy, 81 Geo. L.J. 195 (1992)Google Scholar. The seminal thinking in this area is found in the scholarship of Oliver E. Williamson. See, e.g., Williamson, Oliver E., Economies as an Antitrust Defense Revisited, 125 U. PA. L. Rev. 699 (1977).CrossRefGoogle Scholar

224 Most courts have rejected the defense, finding the claimed efficiencies could be achieved by means other than merger, were not adequately proved or were not significant net efficiencies once the costs of attaining those efficiencies were offset against the claimed savings. See, e.g., Federal Trade Comm'n v. University Health, Inc., 938 F.2d 1206, 1223 (11th Cir. 1991); United States v. Mercy Health Servs., 902 F. Supp. 968, 987-89 (N.D. Iowa 1995). Courts, however, have accepted efficiencies claims. See, e.g., United States v. Carilion Health Sys., 707 F. Supp. 840, 849 (W.D. Va.), affdon other grounds, 892 F.2d 1042, 1042 (4th Cir. 1989).

225 See Butterviorth, 946 F. Supp. at 1301.

226 See id.

227 After setting forth the parties contentions regarding efficiencies, the court stated: "Because measuring the efficiencies of a proposed transaction is inherently difficult and because both sides’ estimates are clearly based in some measure on speculative self-serving assertions ... the Court finds it neither appropriate nor necessary to engage in a detailed evaluation of the competing views.” Id.

228 See id. at 1301 (describing Butterworth’s successful rebuttal of the FTC’s prima facie case, thus creating a presumption of legality). But cf. United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1291 (N.D. 111. 1989) (holding that the defendants failed to demonstrate clearly and convincingly that the merger would create a net economic benefit for the health care consumer). See generally AREEDA & TURNER, supra note 11, ¶¶ 939-62, at 146-99 (addressing the legal and practi cal implications of courts recognizing an economics or efficiencies defense to allegations of unlaw ful mergers).

229 See United States v. Topco Assocs., Inc., 405 U.S. 596, 622 (1972) (Burger, C.J., dissent ing) (asserting that “courts are of limited utility in examining difficult economic problems" and Congress has not yet freed courts to “ramble through the wilds of economic theory in order to main tain a flexible approach”).

230 The district court opinions in the Mercy Health, Freeman Hospital and Butter-worth cases were all authored by Reagan or Bush appointees. See 1 Sapen Law & Bus., Almanac Of The Federal Judiciary, 8th Cir. Section at 15, 47, 6th Cir. Section at 37 (Megan Chase ed., 1996-2 Supp.). Two members of the Eighth Circuit panel deciding the Freeman Hospital case, including the author of the opinion, were Reagan appointees; the third member was appointed by President Clin ton. See 2 Aspen Law & Bus., Almanac Of The Federal Judiciary, 8th Cir. Section at 4, 9, 11 (Megan Chase ed., 1997-1 Supp.). Empirical analyses of the antitrust decisions show that judges appointed by Presidents Reagan and Bush have been more conservative (i.e., permissive) on antitrust matters including horizontal mergers than those appointed by President Carter. See Kovacic, William E., Judicial Appointment and the Future of Antitrust Policy, Antitrust, Spring 1993, at 8, 9Google Scholar; Kovacic, William E., Reagan’s Judicial Appointments and Antitrust in the Nineties, 60 Fordham L. Rev. 49, 53-67 (1991).Google Scholar