While it can be hard to evaluate a failing firm defense under the Merger Guidelines, the principles underlying the test are generally sound, even when the overall economy is going through very difficult times.

The author argues for using the total welfare standard, rather than the more commonly employed consumer welfare standard. In doing so, Heyer responds to three broad objections that have been raised.

The author argues for using the total welfare standard, rather than the more commonly employed consumer welfare standard. In doing so, Heyer responds to three broad objections that have been raised. Ken Heyer (Federal Trade Commission)

How have the revised Horizontal Merger Guidelines affected welfare standards in merger analysis? Ken Heyer (Federal Trade Commission)