If the parties propose to divest all of one firms assets used in the production, distribution and sale of the relevant product, doesn that end the inquiry?
A. No. Although the competitive analysis focuses on specific product markets, remedy analysis focuses on what a business needs to be an effective competitor in the relevant market. Different businesses will likely have different existing production, distribution and selling facilities; assuring that a buyer can operate the assets to be acquired and maintain or restore competition in the relevant market may require the reconfiguration of, or increase in, the buyer’s existing assets or the acquisition of complementary assets from the seller. Because the operations of the buyer and seller may be of a different scale and/or scope, something more than just the assets used in the production, distribution and/or sale of the relevant product may be required. (For similar reasons, something less than the assets used in the production, distribution and sale of the relevant product may be a sufficient remedy if there is convincing evidence that divestiture of less will effectively maintain or res
A. No. Although the competitive analysis focuses on specific product markets, remedy analysis focuses on what a business needs to be an effective competitor in the relevant market. Different businesses will likely have different existing production, distribution and selling facilities; assuring that a buyer can operate the assets to be acquired and maintain or restore competition in the relevant market may require the reconfiguration of, or increase in, the buyer’s existing assets or the acquisition of complementary assets from the seller. Because the operations of the buyer and seller may be of a different scale and/or scope, something more than just the assets used in the production, distribution and/or sale of the relevant product may be required.
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