August 27, 2007

Minute Merger Musings

by PG

Milbarge hopes that the Federal Trade Commission doesn't follow up its plan to appeal a federal judge's OK of the Whole Foods-Wild Oats merger with a challenge to the XM-Sirius merger. Now that the D.C. Circuit has said no to the FTC's request of a stay pending that appeal, the FTC probably is feeling rather slapped down. However, even if the FTC still is feisty about challenging mergers, there are potential differences between these two.

I'm having trouble getting good information on how profitable Wild Oats has been (the reviews mostly seem to be "less successful than Whole Foods," which is not useful; Bloomberg said last November that "Wild Oats posted a loss in two of the past five years and its sales climbed 26 percent over the period to $1.12 billion, while Whole Foods doubled profit and sales"), so this is just a guess. But I think that there is a failing/flailing firm defense for the XM-Sirius merger that doesn't exist for Whole Foods and Wild Oats. I get the impression that Wild Oats may continue in existence even if the merger doesn't go through, whereas there appears to be concern that either XM or Sirius or both wouldn't survive if the merger isn't permitted. Neither has ever posted a profit, even after XM began predicting that it would.

There's also a branding issue in play with Whole Foods and Wild Oats in the organic food market that doesn't exist, as far as I know, for XM and Sirius in the radio market. Other supermarkets will sell WF's and WO's branded organic food along with other organics. So the question for doing a proper Herfindahl index of the organic foods market, is how much of the total organic market is made up of food branded by Whole Foods or Wild Oats, and/or sold in their stores. This may be quite a lot of the organics market, and probably would be even more of it if standards for what can be called "organic" weren't being frantically lowered in order to satisfy demand and appease the big food makers that have developed organic labels. In contrast, satellite radio is a puny threat to terrestrial radio -- particularly compared to the inroads made by MP3s and online music.

August 27, 2007 12:20 AM | TrackBack

Clearly, I don't know enough about antitrust to comment knowledgeably about mergers, so thanks for the lesson!

Posted by: Milbarge at August 27, 2007 03:04 AM

Antitrust is probably my favorite area of commercial law, but I haven't been tracking the WF-WO and XM-Sirius mergers as closely as some have. It looks like my intuition was partly correct, however, as a blog summarized part of the federal district court's refusal of an injunction to prevent the merger thus: Potential efficiencies and flailing company defenses raised by Whole Foods and Wild Oats were considered briefly. The court concluded that the defendants failed to meet their burden on the issue of efficiencies under Section 4 of the Horizontal Merger Guidelines and failed to establish that Wild Oats was a weakened or flailing firm and that its elimination by Whole Foods would lead to a more efficient competitor. I do think that XM and Sirius can make this defense more easily.

Posted by: PG at August 27, 2007 12:00 PM
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