Although the Federal Trade Commission (FTC) took no action in this matter, the California Attorney General unsuccessfully tried to block it. Since an antitrust suit was brought but did not ultimately prevail, this transaction provides a case study of a merger that was consummated despite raising antitrust concern. This allows us to analyze whether antitrust enforcement was too lax for what might be viewed as a marginal case, since the FTC and the California Attorney General pursued different enforcement actions.1 The success of both the antitrust agencies and the courts in analyzing such mergers is of great policy importance for two reasons. First, even a relatively minor change in antitrust enforcement potentially affects mergers that are “close calls”. Second, and perhaps more importantly, changes in enforcement policy influence which transactions are ever attempted in the first place.
Our analysis focuses on a fundamental question regarding the Sutter–Summit transaction: how does each hospital’s price adjust after the merger, and is this price change sufficiently unusual that it can be reasonably attributed to the transaction? We are able to answer this question due to the availability of a particularly rich data source: detailed claims data from the merging hospitals and three large health insurers.2 We find that Summit charged significantly less than Alta Bates did prior to the transaction, but post-merger, the two prices substan-tially converged. Although Alta Bates’ post-merger price change is similar to the price change for other hospitals, Summit’s price increase is one of the largest of any comparable hospital in California. The empirical evidence indicates that, for this transaction, the merger of a higher-priced hospital with a lower-priced competitor produced two higher-priced hospitals (section 2 discusses why the merger led to a price increase at Summit, but not Alta Bates).
The key implication of our results is that this transaction may have been anti- competitive.3 Our findings therefore support the FTC’s 2002 decision, made subse- quent to the Sutter–Summit transaction, to form a merger litigation task force with the purpose of “reinvigorating the Commission’s hospital merger program”.4
Our findings highlight two other important issues. First, they do not support the proposition that mergers involving nonprofit hospitals are not of antitrust concern, as has previously been suggested (see section 2). We find a substantial price increase, even though the merging parties were both nonprofits. Second, our findings call into question the applicability to hospital mergers of the Elzinga–Hogarty (E–H) (1973, 1978) method for delineating the geographic market in which to analyze a transaction. Both sides relied upon this approach in the Sutter–Summit preliminary injunction trial. In this method, the geographic market is constructed so that it has limited patient inflow and outflow. As previous research shows, however, substantial patient flows across two geographic areas is insufficient to conclude that competition from hospitals in one area will prevent a post-merger price increase in the other. This is confirmed in our results.