On Merger Policy and Labor

By Sanjukta Paul

What’s a merger? A merger is a specific method of expanding the scope of a particular form of economic coordination that has been authorized by law. There is nothing natural or necessary about firms as a form of economic coordination or organization. All throughout history, people have been innovating and creating and trading in all sorts of organizational forms and economic institutions—through craft guilds, through mercantile guilds. There’s nothing compulsory or natural about the specific form of the modern firm—shareholder-driven and organized in the particular way that it is, with workers largely divorced from decision-making. 

Now, I’m not suggesting that we go back to the guild system. I’m asking us to take a step back and think about what a firm is and what we’re doing when we say that the presumption should be that, in essence, firms have the right to combine into still-larger and more powerful firms.

Because I want to propose a shift in our thinking about merger policy. I suggest we think about merger policy not just from the perspective of a specific merger’s effect on market concentration and on wages. We should also think about the rules we adopt in terms of their systemic effects on labor, on labor unions, on workers. And that means thinking about antitrust rules not just in terms of how we would apply a given set of rules in a given adjudication, but also in terms of how they function prophylactically to create, or not create, the sorts of markets we want to see.

What is the effect of a permissive merger policy versus a quite stringent merger policy on the competitive and business strategies that executives and boards are looking at, and that they may even be compelled into when everyone else is also pursuing them? What competitive strategies are open to firm controllers given a particular set of legal rules? In the context of a strict merger policy, what would happen to business strategy? I’m just going to ask the question as a thought experiment: If we take mergers more or less off the table as a competitive or business strategy, if we make them the exception and not the rule, what would happen? What would be the implications for markets in general and for labor in particular? I’m not going to answer those questions exhaustively, but I’m going to suggest that we think about them.

The firm is specifically an antitrust exception. It is a suspension of competition. You can say that it’s crazy to think about not allowing firm-based coordination; how would we produce? Well, there are actually all kinds of ways. At the simplest level, if you were truly trying to maximize competition, you could take the output of a firm and divide it—you keep all the operational integration, but you could just divide control rights over that output among everyone who works for that firm and let them individually price their share of the output. That would be a more competitive outcome, potentially replicating the level of competition that the modern business firm displaced. It’s fine that we don’t do that, but I think we need to notice what is actually happening here. I’m not the first one to have this insight: Ronald Coase, most famously, talked about the firm as a suspension of competition and market exchange.

So that is what a merger is: expanding this particular way of suspending competition. We need to be very clear about what we are actually doing and how we treat that form differently from other suspensions of competition—including labor unions, cooperatives, and even looser horizontal coordination in the form of things like trade associations. 

Mergers are an expansion of the scope of what is already the biggest and strongest antitrust exemption we have: the firm. That’s one thing I want us to notice about mergers. The second point I want to make is about “efficiencies.” When we talk about efficiencies that may be realized by a given merger, we need to consider two things. Which of them, first of all, actually are efficiencies versus something else? And secondly, could any genuine efficiencies potentially be achieved through forms of coordination other than the expansion of the firm? How?

Now, taking the second point first, this idea of thinking about economic coordination broadly is not just an academic point. What could we do right now in terms of other forms of coordination that could realize some of the putative efficiencies that specific mergers may accomplish?

For instance, could some of those genuine efficiencies be achieved through industry-wide standards in various situations? Could they be achieved by a trade association? We have trade associations that do marketing for various industries. You’ve all seen the milk ads. Or maybe you remember the California Raisins. Is there coordination through those types of mechanisms that could actually preserve more independent decision-making throughout the economy? That, by the way, is one of the goals of antitrust under settled law: dispersed decision-making. So, should we be considering those alternative forms of coordination? And indeed, in any new merger guidelines, should we be considering a safe harbor for some of these alternative forms of coordination—potentially through dispersed coordination, through trade associations or industry-wide standards—that could achieve some of those genuine efficiencies without the consolidation, and specifically without the consolidation in the form of the shareholder-driven firm that mergers currently signify? 

And on the first point about efficiencies: We also have to ask, how many of these putative efficiencies are actually intensified forms of extraction versus actual efficiencies? And here, it’s important to first get conceptually clear about what we mean by “efficiency.” Do we mean allocative efficiency? I don’t find that concept terribly useful myself, but to the extent that we are adopting it, obviously a merger decreases allocative efficiency. Everyone, Robert Bork, Oliver Williamson, has actually agreed on that. Somehow, though, we sometimes seem to forget this simple point.

So, allocative efficiency certainly isn’t an efficiency that’s contributed by a merger. It has to be a production efficiency. Then the question becomes: When are there true production efficiencies that are contributed by a given merger? In some cases, what we call a productive efficiency may actually be a form of extraction. I’m not saying they all are; I think there are genuine efficiencies. But sometimes, specifically when we’re looking at price as an index of production efficiency—which is obviously a shorthand we use all the time—we mistake extraction, or just a transfer of benefits from one group to another, for efficiency. In other words, low prices are often not an indication of production efficiencies; they’re an indication of extraction. And I don’t mean that in just a moralizing, pejorative way; this has to be acknowledged regardless of your ultimate normative views.

Let me break it down. What is a production efficiency? A technical efficiency means you get more output for the same input. It is technical innovation. We have seen so much such technical innovation in history. We live in a time in which we’re benefiting from it tremendously. But consider the difference between a machine that allows two workers to produce more (at the same quality) with the same effort, versus a new institutional or organizational arrangement that pays those two workers less to produce the same amount—or has them put in more effort for the same amount. Those are not the same thing. The second thing simply is not a technical efficiency. I’m not taking a normative position on that, right now. You can, I suppose, have the position that that’s a good thing and that we should drive wages down to subsistence levels. I do not think that—I do not think many people would admit that they think that even if they do—but I want us right now to notice that, conceptually, there is a difference.

And the same thing applies when a merger leads to greater bargaining power with respect to other firms that are input suppliers or distributors or whatever—firms in adjacent markets that you’re bargaining with. If you ultimately get lower prices—which we know we often don’t because instead those savings go up to shareholders—to what extent is it coming from superior bargaining power with respect to suppliers, distributors, and other trading partners versus true productive efficiencies? Imagine you now have more bargaining power with respect to trading partners in adjacent markets—very plausible if you’re now a bigger firm and you have a larger market share. So, again, we need to distinguish between true technical efficiency and extraction, both on the labor side and on the smaller-firm side.

And by the way, that’s not mainly because we just care about small firms and we romanticize them. Those small firms have workers themselves. So we need to look very carefully at even the supposed wage premium of large firms, because to what extent is that a wealth transfer from the workers of other firms to the workers of large firms (to the extent there even is a wage premium)? Notably, aside from current harms, you don’t even maintain that benefit if you just get rid of small firms to extract from.

These are all things we need to think about when we think about merger policy and workers. It’s more than a matter of efficiencies, too. For instance, permissive merger policy might entail a direct transfer from the productive arms of the firm to its nonproductive arms, and therefore ultimately from workers to shareholders and dealmakers. We often talk about this process as a function of the greed of individuals, like executives or the members of the board, but if we consider it systemically, we see how everyone, including those executives and boards, are actually constrained by this.

Many social scientists and researchers have been talking about share buybacks as a form of this type of transfer from workers and from production in general to the financial and household sectors. Josh Mason, an economist whom antitrust folks should pay more attention to, has a nice essay thinking about M&A itself as this same type of transfer. And he says:

[W]hen acquisitions are paid in stock, the total volume of shares doesn’t change. But when they are paid in cash, it does. In the aggregate, when publicly traded company A pays $1 billion to acquire publicly traded company B, that is just a payment from the corporate sector to the household sector of $1 billion, just as if the corporation were buying back its own stock.

Again, we are transferring from producers to savers at a systemic level. And again, you can have different views on the utility of that, but that is exactly what has been critiqued with respect to share buybacks. And whatever your opinion about it, it certainly isn’t a productive efficiency!

If you’ve taught business associations, as I have, then you’ve read all kinds of cases with your students in which the board doesn’t actually want to do the deal—even beyond the deals actually classified as hostile takeovers. No one who’s actually running the company wants it to happen. But their hands are tied by the pressure exerted by this set of rules, or at least their hands are strongly guided toward doing deals that very few people actually want. And this is especially stark when we consider that their primary job is to be stewards and managers of certain productive assets. That’s the point of the firm: making the best use of productive assets. We’ve decided, as a society, that giving this job over to managers and CEOs and boards is the way we want to do that. So if that’s the goal, we must ask, with respect to merger policy: Wouldn’t it be useful to have prophylactic rules that actually channel decision-makers’ activity toward doing precisely that, rather than impelling them toward deals that often benefit very few people?

* This is an edited transcription of a presentation delivered at the “Antitrust and Competition Conference: Beyond the Consumer Welfare Standard?” (University of Chicago, April 20-21, 2023).

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