international corporate-law competition
How can huge company mergers that kill all competition be legal?
<p>Disclaimer: I'm a programmer/electrical engineer and therefore a complete novice to law.</p>

<p><strong>My question is: how can mergers of direct competitors, each already having a dominant market oligopoly, be legal?</strong></p>

<p>The trend in the electronic industry the recent years has been that two huge, multi-national companies that are each other's direct competitors, with little or no other competition, have merged into one. Some notable examples:</p>

<ul>
<li><p><a href="https://www.infineon.com/cms/en/about-infineon/press/press-releases/2015/INFXX201501-020.html" rel="nofollow noreferrer">Infinion acquires International Rectifier</a>. Both companies specialized in advanced MOSFET circuits with barely any other competitors existing in the whole world. They now have close to monopoly on these kind of circuits. You find these circuits in every modern car.</p></li>
<li><p><a href="http://www.microchip.com/announcements/microchip-technology-inc-acquires-atmel" rel="nofollow noreferrer">Microchip acquires Atmel</a>. Both companies were direct and fierce competitors in the market of cheap, small microcontrollers. They were the only two companies in the world that profiled themselves as having beginner-friendly, easy to use microcontrollers and so they have been competing over the very same kind of customers for the past 30 years or so. There is barely any competition left at all on that market now.</p></li>
<li><p><a href="http://investors.nxp.com/phoenix.zhtml?c=209114&amp;p=irol-newsArticle&amp;ID=2120581" rel="nofollow noreferrer">NXP acquires Freescale</a>. The companies had many overlaps and were competitors in many areas, particularly in microcontrollers and automotive electronics. These two companies branched out from Phillips and Motorola respectively, roughly at the same time, some 15 years ago. Since then they had the same owners. NXP now got a different owner Qualcomm, at the same time as the merger. Qualcomm being another of these huge companies, but with a focus on telecom electronics, where they in turn have close to monopoly. So essentially this is 3 companies merging into 1.</p></li>
</ul>

<p>There are many more examples. ON Semi acquires Fairchild, Analog Devices acquires Linear Technology and so on. All in the past 1-2 years. It is the same story over and over, two huge multi-national companies that are direct competitors, with little or no other competition, merge into one. Imagine Microsoft and Google merging and you get the idea. </p>

<p>The nature of their products - advanced electronic components - is such that barely anyone can start up a competing company, as they would need to do massive investments in R&amp;D, head-hunt all staff from the existing companies and possibly also make massive investments in production lines. Because of this steep threshold to enter the market, there has traditionally only been around 20 companies like this in the world, making 99% of the world's advanced electronic components. </p>

<p>I take it that these mergers must have been approved by authorities in USA and Europe etc. Are there no laws regulating this? If there are, how do these companies manage to repeatedly dodge such laws world-wide? </p>

<p>There are no laws directly regulating merger of two companies. Instead, there are laws against "monopolizing" (and similar expressions). In the US, the Sherman Act, the Clayton Act and the FTC Act providing the legal underpinning for the Department of Justice to prosecute a merger, or for a judge to prohibit a merger. The typical logical flow is that it is illegal to unfairly reduce competition, which might mean lowering prices when you have a substantial share of the market, privately agreeing on technical innovations with a competitor, or simply gaining a substantial share of the market via a merger.</p>

<p><a href="https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/mergers" rel="nofollow noreferrer">Section 7</a> of the Clayton Act (also Sect 1 and 2 of the Sherman Act, Sect. 5 of the FTC Act) forbid a merger or acquisition when the effect would be "substantially to lessen competition, or to tend to create a monopoly". The US government has issued <a href="https://www.ftc.gov/sites/default/files/attachments/mergers/100819hmg.pdf" rel="nofollow noreferrer">guidelines</a> that gives ballpark suggestions about that they would be looking for in deciding is a merger is forbidden. The <a href="https://en.wikipedia.org/wiki/Hart%E2%80%93Scott%E2%80%93Rodino_Antitrust_Improvements_Act" rel="nofollow noreferrer">Hart–Scott–Rodino Antitrust Improvements Act</a> provides the legal framework for federal review where the government approves vs. blocks an acquisition action (you have to file paperwork so they know that you intend a potential violation of anti-trust law). There are thresholds involving how big the cmopanies are and whethr4e they affect US commerce. <a href="https://www.ftc.gov/news-events/media-resources/mergers-and-competition/merger-review" rel="nofollow noreferrer">This blurb</a> outlines the review process.</p>
