The Quest for the Higgs Boson? Failing firm and efficiency defenses in EU and UK merger control

At times, failing firm and efficiency defences to otherwise anti-competitive mergers can feel somewhat like the quest for the Higgs Boson. Economic theory – and competition authorities’ merger guidelines – suggests that these defences should exist, but they are often unsuccessful. Mat Hughes and Pablo Florian review the extent to which UK and EU mergers have been cleared on the basis of the failing firm and efficiency defences since 2010, and focus on why such arguments were viewed as credible in the Nynas/Shell phase II EU and Imerys/Goonvean phase II UK mergers.