In this issue:

Whole Foods: A U.S. Perspective

Charles Biggio, Sep 01, 2008

Whole Foods Impact on Unilateral Effects

Now comes the decision of the U.S. Court of Appeals for the D.C. Circuit, reversing the district court’s denial of a preliminary injunction. There are many interesting aspects of the D.C. Circuit’s decision, including the FTC’s (now meager?) burden in obtaining a preliminary injunction under Ârt 13(b) of the Federal Trade Commission Act, the role of bad documents and colorful statements against interest made by a CEO, and the powers of a district court in fashioning a remedy pending further litigation before an FTC administrative law judge. The D.C. Circuit’s decision also has some interesting implications for future unilateral effects cases, though perhaps not entirely in ways envisioned by the agencies.

Timothy Brennan, Sep 01, 2008

FTC v. Whole Foods: Which Standards? Which Substitutes?

If email traffic over the American Bar Association’s Antitrust Section “conversation” list is any indication, the recent 2-1 decision by a panel of the U.S. Court of Appeals for the DC Circuit Court in FTC v. Whole Foods is the hottest current topic, at least in the U.S. corner of the competition policy community. In this article, I briefly discuss some legal issues, then turn to aspects of market definition, and conclude with observations relating to recent discussions on the role of distributional considerations in merger assessment.

William Baer, Deborah Feinstein, Sep 01, 2008

Changing Emphasis: How Whole Foods Advances the FTC’s Efforts to Transform Merger Litigation

Last month’s Whole Foods decision by the U.S. Court of Appeals for the D.C. Circuit can be viewed from a variety of perspectives. Our focus in this commentary is how the decision is likely to reinforce the U.S. Federal Trade Commission’s (“FTC’s”) determination to change the way it challenges mergers.

Whole Foods: A European Perspective

William Bishop, Sep 01, 2008

Whole Foods: A View from Europe

The Whole Foods judgment in the US Court of Appeals for the DC Circuit appears to have shocked many US antitrust commentators. Judge Kavanaugh, dissenting, expressed a view that has echoed through the advisory community, “In the end the FTC’s case is weak and seems a relic of a bygone era when antitrust was divorced from basic economic principles.” While I understand the reaction, as an economist immersed in European antitrust law, Whole Foods does not seem so anomalous. Indeed, both the FTC case and the majority opinion might be founded on better economics than appears at first sight.

Jordi Gual, Sandra Jódar-Rosell, Sep 01, 2008

Market Definition in Grocery Retailing: The Whole Foods Case

As in many other antitrust cases, the delineation of the relevant product market was the critical issue in the Whole Foods and Wild Oats merger. Setting the market boundaries containing the set of products in direct competition with those of the merging parties is a very difficult task in the presence of product differentiation. The varieties produced by each of the firms differ in several dimensions.

Kate Collyer, Andrew Taylor, Sep 01, 2008

Defining Product Markets in the UK Grocery Industry

On April 30, 2008, the UK Competition Commission published the final report of its two year investigation into the supply of groceries in the UK. This article gives a UK perspective on some of the issues covered in the recent Whole Foods decision by the U.S. Court of Appeals for the District of Columbia. It draws out the key market definition findings in the CC’s investigation, with a particular focus on the CC’s decisions and analysis with respect to those grocery retailers offering a somewhat differentiated product from the UK’s mainstream grocery retailers.