Thanks for the comment. It seems to me that in order to arrive at a well-defined market based on a SSNIP test, economic analysis has to be applied (diversion analysis/critical loss analysis) and that this tricky business. So tricky in fact that it can be easier (in unilateral effects cases) to apply the economic analysis not first to the question of market definition but directly to the question of competitive harm, that is the prospective ability of the merged firms, rather than a hypothetical monopolist, to profitably and sustainably raise prices above pre-merger levels or reduce quality.

Other avenues to market definition aside from the theoretically-elegant SSNIP test, like surveys of business people in the industry or company documents, are notoriously unreliable.

Well, what does one consider “direct proof” in an HSR matter, where the merger has not yet been consummated? Courts are right to insist on considering prospective competitive effects within the context of a well-defined market.

It’s also a little odd to disparage economic evidence when courts seem increasingly open to economic arguments, which would seem to require economic evidence in order to be persuasive.