The Long, Slow Decline Of Elzinga-Hogarty And What Comes After

By Cory S. Capps, David Dranove & Zenon Zabinski – 

In 2016, after initial losses at the district court level in its challenges to the Hershey-Pinnacle and Advocate-NorthShore hospital mergers, the FTC ultimately prevailed in the Third and Seventh Circuit Courts of Appeal. The authors explain why these two cases are likely to put an end to the use of the Elzinga-Hogarty test to define relevant geographic markets in provider merger cases. With future efforts to block hospital mergers in smaller metro areas likely to succeed absent strong failing firm or efficiencies arguments, they argue that enforcement may shift to new battlegrounds, including mergers in large urban areas, cross-market mergers, and vertical mergers.

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