………Competitors to the merging parties.

That’s the category I’m referring to here.

And it’s the one that merging parties and competition agencies tend to overlook when thinking about behavioural remedies.

Their implicit, hidden assumption is that non-merging rivals will not change their behaviour.

But that’s just not the case.

As I’ve said before – and can’t repeat too often – hidden assumptions are one of the most important things to watch out for in stress-testing merger cases and remedy proposals

If you’re a competitor here are just a few of the questions that the most alert companies ask and act upon:

• How can we take advantage of the proposed behavioural remedies for our rivals? Especially competitive advantage.
• What could we do to help make the merger remedy fail.
• What advantage or disadvantage might that give us?
• And/or what harm might that do our merging rivals? Or benefit?

As I think we’ll see in due course, the failure of competition agencies and merging parties to think about the competitor response to behavioural remedies is going to produce some unexpected outcomes.

Watch out for a forthcoming post on this.