Should the Agencies Adopt Market Share Safe Harbors for Joint Ventures Based on Merger Analysis?
Some observers believe that joint ventures should be presumptively lawful if a merger between the collaborators would be permissible in the joint venture market. Because mergers end all competition between the parties, many commentators assume that joint ventures will result in fewer anticompetitive effects since the parties remain independent entities that may compete against each other in the present or the future. Because some mergers enjoy safe harbors under the Merger Guidelines, some observers have advocated similar market share safe harbors for legitimate joint ventures.(169) Although it may be true as a general matter that joint ventures are less likely to result in anticompetitive effects than mergers, there are several factors that should be considered in assessing whether to extend a market power safe harbor to certain joint ventures based on merger analysis. What are the advantages and disadvantages of creating market share safe harbors for competitor collaborations?(170) P
