Decision theory and antitrust rules

Antitrust Law Journal

Volumn 67, Issue 1, 1999, Pages 41-76

  Beckner III, C Frederick ^b   Salop, Steven C ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b NONE

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EID: 0033410755     PISSN: 00036056     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (93)

1. The key cases include FTC v. Superior Ct. Trial Lawyers Ass'n (SCTLA), 493 U.S. 411 (1990); FTC v. Indiana Fed'n of Dentists (Indiana Dentists), 476 U.S. 447 (1986); NCAA v. Board of Regents, 468 U.S. 85 (1984); Broadcast Music, Inc. v. CBS, Inc. (BMI), 441 U.S. 1 (1979); Continental T.V., Inc. v. GTE Sylvania Inc. (Sylvania), 433 U.S. 36 (1977); and Massachusetts Bd. of Registration in Optometry (Mass. Board), 110 F.T.C. 549 (1988).
2. See Intel Corporation, FTC Docket No. 9288 (June 8, 1998).
3. California Dental Ass'n, 5 Trade Reg. Rep. (CCH) ¶ 24,007 (1996) (Cal. Dental), aff'd, California Dental Ass'n v. FTC, 128 F.3d 720 (9th Cir. 1997), cert. granted, 1998 WL 159212 (1998).
4. See Herbert Simon, Theories of Decision Making in Economics, 44 AM. ECON. REV. 253 (1959); MORRIS DEGROOT, OPTIMAL STATISTICAL DECISIONS (1970).
5. See Herbert Simon, Theories of Decision Making in Economics, 44 AM. ECON. REV. 253 (1959); MORRIS DEGROOT, OPTIMAL STATISTICAL DECISIONS (1970).
6. See John Kaplan, Decision Theory and the Fact Finding Process, 20 STAN. L. REV. 1065 (1968); Gary Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
7. See John Kaplan, Decision Theory and the Fact Finding Process, 20 STAN. L. REV. 1065 (1968); Gary Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
8. We discuss the role courts play in information gathering in more detail below in Part II.B.
9. For simplicity of exposition, we will refer to all these judicial entities as courts.
10. In the judicial context, juries (and not judges) are often the finders of fact. Judges, however, control the information gathering process that is the central focus of our analysis. The court determines what information is presented to the juries and in what order that information is presented. The jury instruction explains how the evidence should be considered. For example, the judge can bifurcate a trial, and order damages to be tried before liability or vice-versa. See William Landes, Sequential Versus Unitary Trials: An Economic Analysis, 12 J. LEGAL STUD. 99 (1993). Judges also decide the ultimate legal issues involved in a case, including whether there are any disputed issues of material fact.
11. See infra note 27.
12. We treat the expected value from forgoing the investment as zero. We assume that the opportunity cost of the investment funds is netted out of the returns on the investment.
13. See Richard Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. LEGAL STUD. 399 (1973).
14. What about the potential that the information would reveal good news? Why didn't the decision maker take that into account? The answer is that the firm would have chosen to invest, even if it had remained ignorant of the good news. In essence, it would have presumed that the investment would succeed. Thus, this good news would not alter the decision maker's investment choice and so was irrelevant to the information cost-benefit tradeoff. It might have reduced the decision maker's anxiety level, but that anxiety reduction is not valued by the risk neutral decision maker we have assumed.
15. Assuming that the decision maker's initial view was that the investment would fail with a probability of 50% and assuming that the "bad" news is that the investment is certain to fail, it follows that ex ante the probability of "bad" news must be 50%.
16. This result can be explained in still another way. If the additional information is gathered, either the value of the firm will rise by $150 (in the event that information reveals good news that induces the firm to invest) or it will stay the same (in the event that the information reveals bad news, leading the firm to forgo the investment). Thus, the value of the firm will increase in expected value terms by $75 (i.e., 50% times $150 gain). Absent the information, the expected increase in value is $25. Thus, the incremental benefit of the information is the $50 increase in expected value.
17. Some commentators would then argue that this implies that the intent of the conduct must be increased efficiency. See, e.g., Frank Easterbrook, The Limits of Antitrust, 63 TEX. L. REV. 1 (1984); see also Rothery Storage and Van Co. v. Atlas Van Lines, 792 F.2d 210 (1986).
18. See Landes, supra note 8
19. Id.; see also C. Frederick Beckner & Steven C. Salop, Issue Sequencing and Summary Disposition in an Efficient Legal Process, Working Paper (Sept. 1995).
20. As a second example, in a non-financial context, suppose that key facts were the minimum viable scale (MVS) of entry and the time required for entry. If the fact finder knows that the MVS is between 4.9% and 5.1%, whereas the time of entry could be as short as six months or as long as six years, the benefits of learning the latter fact are larger.
21. The analysis is somewhat simpler to describe if we act as if the court or government agency is evaluating proposed conduct, such as a proposed merger or joint venture subject to the Hart-Scott-Rodino premerger notification process. Where the issue is completed conduct, the focus would be on liability rather than injunction, but the decision theoretic analysis would be the same.
22. This decision is optimal for a risk neutral court. It is possible that the court would be risk averse, weighing losses in consumer welfare more heavily than gains in consumer welfare. If so, that fact could be taken into account without changing the basic framework. Risk aversion will enter the information gathering decision in a more fundamental way, as discussed later.
23. As a practical matter, we are not saying that courts actually will (or even could) precisely calculate these probabilities. The court may do the weighing informally or intuitively. By working through the mathematics and assuming that this type of calculation is possible, however, we can gain a better understanding of the trade-offs and improve the intuition of even innumeric courts. Judge Posner sets out a far more elegant statement on this point in American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986).
24. See Posner, supra note 11; Issac Ehrlich & Richard Posner, An Economic Analysis of Legal Rule Making, 3 J. LEGAL STUD. 257 (1974).
25. For a detailed analysis of this point, see Richard Craswell & John Calfee, Deterrence and Uncertain Legal Standards, 2 J.L., ECON. & ORG. 279 (1986).
26. In an inquisitorial system, by contrast, courts play a much more active role in gathering information. Regulatory commissions with litigation staff also do not need to depend totally upon private parties to gather information.
27. This potentially would save the court the time of trying to understand and evaluate the magnitude of the claimed efficiency benefits.
28. Conceptualized this way, our analysis applies to the court's legal reasoning and opinion writing.
29. In the analysis so far, we have assumed that the decision maker - whether private firm or court - is risk neutral. A risk neutral decision maker grades alternatives solely in terms of their expected values. That is, a risk neutral decision maker weighs potential harm equally with potential benefits. In contrast, a risk averse decision maker would place more weight on harms. A more risk averse decision maker would even reject conduct with a higher expected value in light of the significant downside risk. Even if the (private or judicial) decision maker is risk averse, that does not render this decision theoretic analysis irrelevant. Risk averse decision makers still will make their decisions on the basis of these quantities; they will simply go beyond merely expected values and give the downside potential additional weight in their decisions. In rendering judicial decisions, it may be appropriate for courts to behave as risk averse decision makers for three reasons. First, the members of society affected by these decisions may be risk averse. The court effectively acts as an agent for these people and so should choose as they would, taking into account its ability to diversify independent risks. Second, because court opinions usually are given precedential effect, a court must be concerned not only with minimizing the error costs in the particular case before it, but also with future cases. Thus, to the extent that the court's decision today will influence the resolution of cases tomorrow, it has an incentive to gather as much information as it can in order to help ensure that those future cases are properly decided. In this way, the efficiency of the legal process is improved. Third, and relatedly, when a court makes a decision based solely on imperfect, preliminary information, the deterrence benefits of that ruling may be reduced somewhat. Potential violators are denied the more detailed information about the legality of conduct that might be revealed if the court made and justified its decision on the basis of more complete information. As a result, potential violators may either be over- or under-deterred in their future conduct. See Craswell & Calfee, supra note 23. The deterrence process might be improved if the potential violators had more precise information about the ultimate merits standards the court will apply.
30. See Beckner & Salop, supra note 17, for a preliminary, formal mathematical model of this multi-stage decision process. That paper builds on Landes, supra note 8.
31. The Supreme Court has expressly recognized the role that a priori presumptions play in the antitrust context. A restraint of trade may be found unlawful "based either (1) on the nature or character of the contracts, or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade and enhance prices." National Soc'y of Prof'l Eng'rs v. United States, 434 U.S. 679, 690 (1978).
32. AVINASH DIXIT & BARRY NALEBUFF, THINKING STRATEGICALLY: THE COMPETITIVE EDGE IN BUSINESS, POLITICS, AND EVERYDAY LIFE 37-44 (1991).
33. See infra Parts III.B and III.C.
34. See infra Part III.D.
35. See id.
36. See id.
37. United States v. Brown Univ., 805 F. Supp. 288 (E.D. Pa. 1992), rev'd, 5 F.3d 658 (3d Cir. 1993).
38. California Dental Ass'n, 5 Trade Reg. Rep. (CCH) ¶ 24,007, at 23,787-797 (1996).
39. Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 19-20 (1979).
40. See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50 (1977) (requiring "the fact finder [to] weigh [] all the circumstances of a case in deciding whether a particular practice should be prohibited" (emphasis added)); cf. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9 (1984) ("Certain types of contractual arrangements are deemed unreasonable as a matter of law. The character of the restraint produced by such arrangement is considered sufficient basis for presuming unreasonableness without the necessity of any analysis of the market context in which the agreement may be found.").
41. Robert Pitofsky, Proposal for Revised United States Merger Enforcement in a Global Economy, 81 GEO. L. REV. 195 (1992).
42. HHI stands for the Herfindahl-Hirshman Index, as defined in U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (1992), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104 [Merger Guidelines].
43. In a litigation context, if market power harms are low, the plaintiff would not be permitted to introduce evidence that efficiency benefits are nonexistent or negative. If market power harms are high, the defendant would not be permitted to introduce evidence that efficiency benefits are so large that the merger should be allowed. Note that we are not advocating or agreeing with Pitofsky's apparent equation of market power with the HHI. Instead, we are showing how Pitofsky's proposal could be efficient under that assumed equation.
44. See United States v. Shonubi, 895 F. Supp. 460, 471 (E.D.N.Y. 1995), vacated on other grounds, 103 F.3d 1085 (2d Cir. 1997) ("[T]here is a consensus among judges that burden of proof can be stated in numerical terms."); Pietrantonio v. United States, 827 F. Supp. 458, 462 (W.D. Mich. 1993); United States v. Fatico, 458 F. Supp. 388, 410 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979).
45. We emphasize that the relevant inquiry for our purposes is the consumer harm that purportedly will be caused by the defendants' exercise of market power (i.e., market power harm), and not simply market definition or market concentration.
46. See, e.g., Kaplan, supra note 5; American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589 (7th Cir. 1986).
47. Jefferson Parish, 466 U.S. at 16 n.25. See also NCAA v. Board of Regents, 468 U.S. 85, 103 (1984) ("Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct" (emphasis added)).
48. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 50 (1977). Justice Marshall made this same point in his dissent in United States v. Container Corp. of America, 393 U.S. 333, 341 (1969) (Marshall, J., dissenting): Per se rules always contain a degree of arbitrariness. They are justified on the assumption that the gains from imposition of the rule will far outweigh the losses and that the significant administrative advantages will result. In other words, the potential competitive harms plus the administrative costs of determining in what particular situations the practice may be harmful must outweigh the benefits that may result. If the potential benefits in the aggregate are outweighed to this degree, then they are simply not worth identifying in individual cases.
49. United States v. Trenton Potteries Co., 237 U.S. 392 (1927).
50. United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).
51. FTC v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411, 423 (1990) (per se rule against price fixing justified because "Sherman Act reflects legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services") (quoting National Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 671, 695 (1978)).
52. See Warren Schwartz, An Overview of the Economics of Antitrust Enforcement, 68 GEO. L.J. 1075 (1980).
53. See, e.g., Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1441 (9th Cir. 1995); Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 486 n.24 (3d Cir. 1992); Air Passengers Computer Reservation Sys. Antitrust Litig., 694 F. Supp. 1443, 146 (C.D. Cal. 1988), aff'd, 948 F.2d 536 (9th Cir. 1991).
54. See NCAA, 468 U.S. at 103 ("Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct." (emphasis added)).
55. NCAA, 468 U.S. at 103-04.
56. BMI, 441 U.S. at 19-20.
57. Board of Trade of Chicago v. United States, 246 U.S. 231, 238 (1918).
58. To clarify, market power harms refers to the consumer harm that would occur from the conduct if there were no efficiency benefits at all. Efficiency benefits are the consumer benefits that would occur from the conduct, if the conduct had no effect on market power harms. By balancing market power harms and efficiency benefits, the net effect on consumer welfare can be evaluated.
59. For a clear statement of this point, see Thomas Krattenmaker, Per Se Violations in Antitrust Law: Confusing Offenses with Defenses, 77 GEO. L.J. 165 (1988).
60. See United States v. Griffith, 334 U.S. 100, 106 (1947); United States v. U.S. Steel Corp., 251 U.S. 417, 451 (1919); United States v. Aluminum Co. of Am., 148 F.2d 416, 429-31 (1945).
61. Of course, another reason is to provide innovation and investment incentives to firms.
62. This analysis is different when monopoly pricing is accompanied by exclusionary conduct.
63. Merger Guidelines, supra note 40, at 20,573.
64. The DOJ and FTC have also included safe harbors in their recent Health Care Guidelines. See Department of Justice and Federal Trade Commission, Statements of Antitrust Enforcement Policy in Health Care, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,153 (1996).
65. See Jennifer Gladieux, Toward a Single Standard for Antitrust: The Federal Trade Commission's Evolving Rule of Reason, 5 GEO. MASON U. L. REV. 471 (1997) (summarizing the literature); James Dowd, Oligopsony Power: Antitrust Injury and Collusive Buyer Practices in Input Markets, 76 BOSTON U. L. REV. 1075 (1996); Phillip Areeda, The Changing Contours of the Per se Rule, 54 ANTITRUST L.J. 27 (1985); Easterbrook, supra note 15; Robert Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 GEO. L.J. 1487 (1983).
66. See Jennifer Gladieux, Toward a Single Standard for Antitrust: The Federal Trade Commission's Evolving Rule of Reason, 5 GEO. MASON U. L. REV. 471 (1997) (summarizing the literature); James Dowd, Oligopsony Power: Antitrust Injury and Collusive Buyer Practices in Input Markets, 76 BOSTON U. L. REV. 1075 (1996); Phillip Areeda, The Changing Contours of the Per se Rule, 54 ANTITRUST L.J. 27 (1985); Easterbrook, supra note 15; Robert Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 GEO. L.J. 1487 (1983).
67. See Jennifer Gladieux, Toward a Single Standard for Antitrust: The Federal Trade Commission's Evolving Rule of Reason, 5 GEO. MASON U. L. REV. 471 (1997) (summarizing the literature); James Dowd, Oligopsony Power: Antitrust Injury and Collusive Buyer Practices in Input Markets, 76 BOSTON U. L. REV. 1075 (1996); Phillip Areeda, The Changing Contours of the Per se Rule, 54 ANTITRUST L.J. 27 (1985); Easterbrook, supra note 15; Robert Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 GEO. L.J. 1487 (1983).
68. See Jennifer Gladieux, Toward a Single Standard for Antitrust: The Federal Trade Commission's Evolving Rule of Reason, 5 GEO. MASON U. L. REV. 471 (1997) (summarizing the literature); James Dowd, Oligopsony Power: Antitrust Injury and Collusive Buyer Practices in Input Markets, 76 BOSTON U. L. REV. 1075 (1996); Phillip Areeda, The Changing Contours of the Per se Rule, 54 ANTITRUST L.J. 27 (1985); Easterbrook, supra note 15; Robert Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 GEO. L.J. 1487 (1983).
69. Easterbrook, supra note 15.
70. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460 (1986) (quoting NCAA, 468 U.S. at 109-10). For more recent cases applying a truncated rule of reason, see United States v. Brown Univ., 805 F. Supp. 288 (E.D. Pa. 1992); United States Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589 (1st Cir. 1993).
71. See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53 (1977); see also U.S. Department of Justice Antitrust Enforcement Policy Guidelines for International Operations (1988) § 3.42, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,109; HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY § 11.6a, b (1994).
72. Massachusetts Bd. of Optometry, 110 F.T.C. 549, 604 (1990); cf. California Dental Ass'n, 5 Trade Reg. Rep. (CCH) ¶ 24,007, at 23,787-797, 27,807-815 (seeming to abandon the Mass. Board approach in favor of a more traditional per se rule of reason analysis).
73. Joel Klein, A Stepwise Approach to Antitrust Review of Horizontal Agreements (Nov. 7, 1996), available at 〈www.usdoj.gov/atr/public/speeches/jikaba.htm〉. Pursuant to the "stepwise approach," when confronting horizontal agreements among competitors, the DOJ will first "ask whether it is the type of restraint that is currently recognized by the courts as being a per se violation, such as an unadorned agreement to fix prices, curtail output, or divide markets." If it is, the agreement is condemned without further analysis. If it is not, the Department "inquires whether there [is] a procompetitive justification for the agreement." If the parties fail to come forward with "real-world evidence" demonstrating the existence of efficiencies, the challenged agreement is condemned without an inquiry into market power. However, if the parties can prove significant procompetitive benefits to the agreement, the Department will analyze the agreement under a full-blown rule of reason analysis. See also A. Douglas Melamed, Exclusionary Vertical Agreements, Speech Before the ABA Antitrust Section (Apr. 2, 1998), available at 〈www.usdoj.gov/atr/ public/speeches/1623.htm〉.
74. Joel Klein, A Stepwise Approach to Antitrust Review of Horizontal Agreements (Nov. 7, 1996), available at 〈www.usdoj.gov/atr/public/speeches/jikaba.htm〉. Pursuant to the "stepwise approach," when confronting horizontal agreements among competitors, the DOJ will first "ask whether it is the type of restraint that is currently recognized by the courts as being a per se violation, such as an unadorned agreement to fix prices, curtail output, or divide markets." If it is, the agreement is condemned without further analysis. If it is not, the Department "inquires whether there [is] a procompetitive justification for the agreement." If the parties fail to come forward with "real-world evidence" demonstrating the existence of efficiencies, the challenged agreement is condemned without an inquiry into market power. However, if the parties can prove significant procompetitive benefits to the agreement, the Department will analyze the agreement under a full-blown rule of reason analysis. See also A. Douglas Melamed, Exclusionary Vertical Agreements, Speech Before the ABA Antitrust Section (Apr. 2, 1998), available at 〈www.usdoj.gov/atr/ public/speeches/1623.htm〉.
75. See generally Merger Guidelines, supra note 40.
76. See Indiana Dentists, 476 U.S. at 464-68; NCAA, 468 U.S. at 100-08.
77. See Indiana Dentists, 476 U.S. at 464-68; NCAA, 468 U.S. at 100-08.
78. See Sylvania, 433 U.S. at 54; Merger Guidelines, supra note 40, at 20,573-574 ("As a consequence, in the majority of cases, the Guidelines will allow firms to achieve available efficiencies through mergers without interference from the Agency.").
79. Sylvania, 433 U.S. at 54; Merger Guidelines, supra note 40, at 20,573-574.
80. Following Sylvania, this decision process often is applied to nonprice vertical restraints. The per se rule against tying discussed in Jefferson Parish Hospital begins with market power, but then surely reaches a final decision in Stage six, forgoing efficiency information (unless efficiency claims amount to a "single product claim").
81. See FTC v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411 (1990).
82. Under the reasoning of Judge Douglas Ginsburg, the political protest justification itself is a type of "efficiency" that would entitle the farmers to a trial under the rule of reason. Superior Ct. Trial Lawyers Ass'n v. FTC, 856 F.2d 226, 248-49 (D.C. Cir. 1988), rev'd, 493 U.S. 411 (1990). The decision theoretic approach provides a somewhat different rationale based on motivation rather than efficiency.
83. The protest also may have a political effect that is not easily quantified as good or bad, absent much more information.
84. See, e.g., NCAA, 468 U.S. at 100-03 (courts can presume harm from price fixing because that is the goal of price fixers).
85. In SCTLA, the Supreme Court suggested that there are social benefits to a clear rule even if there is no apparent harm. 493 U.S. at 439 n.2. But, this decision theoretic rule also is clear.
86. Thomas Kauper, The Sullivan Approach to Horizontal Restraints, 75 CAL. L. REV. 914 (1987). Professor Kauper suggested a complex multi-stage approach. We analyze a simplified variant of his approach here to focus on his fundamental insight.
87. As discussed above, the cost of the information is not the only relevant consideration. It also makes sense to investigate issues over which the decision maker faces greater uncertainty, because resolution of these issues is more likely to determine the decision, thereby obviating the need for further information gathering.
88. California Dental Ass'n, 5 Trade Reg. Rep. (CCH) ¶ 24,007, at 23,791 ("As will be seen, here, application of the rule of reason is simple and short. The anticompetitive effects of [the] advertising restrictions are sufficiently clear, and the claimed efficiencies sufficiently tenuous, that a detailed analysis of market power is unnecessary to reaching a sound conclusion, and, in any event [the defendant] clearly had sufficient power to inflict competitive harm.").
89. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
90. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
91. In fact, the Supreme Court suggested this interpretation of Matshusita in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468 (1992) ("In [Matsushita], the Court determined that the plaintiff's theory of predatory pricing was . . . 'speculative,' and was not 'reasonable.' Accordingly, the Court held that a reasonable jury could not return a verdict for the plaintiffs and that summary judgment would be appropriate against them unless they came forward with more persuasive evidence to support their theory.") (emphasis added).
92. Summary judgment also could be formalized as Stage 6 of our multi-stage decision analysis. Issue B (benefits) could be treated as the "coarser" type of evidence introduced as part of the summary judgment motion and issue H (harms) could be viewed as the more "refined" evidence introduced at the trial. A summary judgment motion claims that the level of B initially shown does not warrant the cost of the trial to learn the true value of H.
93. See Merger Guidelines, supra note 40, at 20,573-574 (adding efficiency section).