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Market power in the United States red meatpacking industry.

The basic question asked in the beginning of this article was whether the evidence from research is persuasive enough to conclude that competition in the meatpacking industry is deficient. The literature review led to the conclusion that the answer is no. Research varies widely in terms of data and methodologic approaches. The research, however, clearly finds evidence of market power. Many SCP studies indicated the existence and exercise of market power, but the failure of the paradigm makes definitive conclusions dangerous. The NEIO studies showed a persistent gap between the price of livestock and marginal costs but the studies did not incorporate sufficient detail to prove specific behavior. Azzam and Anderson [4] conducted an extensive review of competition in meatpacking. In their summary, they offered criticisms of the SCP approach and the conduct parameter approach. These investigators concluded that the body of empiric evidence was insufficient to persuasively argue that the meatpacking industry was not competitive. Sexton [69] discussed more recent critiques of the conduct parameter appraoch. Despite its weaknesses, he concluded that market power estimates in meatpacking are modest but that structural changes on balance are beneficial, from an efficiency viewpoint. Examining the evidence either by data aggregation, methodology, or time period results in little difference in the qualitative interpretation. The research community has done what Nicholls [2] said was needed. The need remains relevant. The research leaves us with a clear picture and nagging questions. Azzam and Anderson [4] recommended that further research focus on the process of competition or the rivalrous interaction between competitors, and on competitors' strategies for responding to technologic and market forces, as the business history of the industry suggests. Specifically, they recommended two approaches. First, to develop empiric pricing models for short-term monitoring. Such models infer conduct from spatial price linkages rather than from concentration as do SCP studies or estimation of conduct parameters as do NEIO studies. Second, to study the dynamics of the competitive process, making use of data describing changes at the firm and plant level, to better understand the effect of market and technologic forces on the evolution of firm behavior and industry structure. After discussing existing research quality and future research needs, two practical things remain to do. The first centers on the following question: How important are the relatively small measures of market power? Most believable price distortions are found to be 3% or less. These distortions are below the 5% regulatory standards related to mergers used by the US Department of Justice and US Federal Trade Commission [70]. These standards, however, are guidelines and not law. Antitrust laws state that the exercise of market power is illegal. Courts and regulatory agencies also have not defined how much market power is significant and for how long a firm or firms must maintain significant market power [71]. From the viewpoint of public welfare, small impacts on price make a substantial difference to livestock producers and rival meatpacking firms. In relatively low-profit commodity businesses, small degrees of market power have significant profit implications. Small price or percentage impacts represent large total dollar amounts, especially over long time periods. To some, the evidence of market power provides clear reasons for antitrust lawsuits, conclusive evidence of weak and disinterested antitrust enforcement, and undeniable grounds for corrective legislation. If we conclude that action is needed, then the second issue emerges: What should be done and will our actions result in a net improvement? The research reviewed in the article by MacDonald elsewhere in this issue clearly shows the economic benefits of large meat processing firms. Likewise, some of the research reviewed here shows that increased concentration benefits producers and consumers. Some of the benefits of lower costs are passed on to producers through improved prices. The clear problems seen in the 1910s and 1920s--the pools and trusts--are not present in the 1990s and 2000s. Legislative action requiring the restructuring of the meatpacking industry or limiting behavior (similar to the Packer Consent Decree of 1920) will come at a large cost to the industry and society. So what should be done? Some people want to do nothing and allow the market to function unencumbered by political action. This approach ignores the problems seen in research. Some people want to go back in time, forgetting the economic incentives for change. They would legislate change in the market structure where they perceive problems, break up large meatpacking firms, restrict supposed problematic conduct, and eliminate contracting and vertical integration. Some people want to treat agriculture as a unique sector of society and create laws and regulations applicable to agriculture alone, regardless of whether the issues driving these actions apply to other sectors of the economy. Little, if any, thought is given to public and private costs or public and private benefits. Structural changes are clear. Research findings on the impacts and consequences are robust. What should be done, however, is not clear or robust. We are in the realm of second-best choices. The fact that we are in a realm of second-best choices is not satisfying to me nor will it likely be to agricultural producers and policy makers. What to do from here is not an economic decision (i.e., economics cannot provide a clear best answer). Rather, it is a political and public choice question that has economic implications: What do we want our livestock and meat industry to look like?

Animals↗

Physician unionization.

Typically, doctors have seemed unsuited for and uncomfortable with the idea of unions but with the current changes in practices and referral patterns, doctors are looking--at least warily--at unions. Two sets of laws apply to possible unionization of physicians; one, federal antitrust laws, the other, both federal and state labor laws as they apply to changes in the medical profession. Antitrust laws are designed to protect competition by prohibiting price fixing. Another typical antitrust issue that applies to healthcare is that of a group boycott or refusal to deal, where competitors try to coerce a third party to set prices where competitors want them set. Congress' earliest legislation to aide the labor movement involved exceptions to the antitrust laws. Some provisions of the laws are limited to workers who are employees, defined as someone who is employed by any person. Doctors are searching for solutions that provide the collective power of the labor laws without offending the antitrust laws. The question is whether doctors can form unions under these two conflicting forces. The first main issue is whether the doctor is or is not an employee. Although radiologic technologists, typically employees of hospitals or provider groups, have been unionized for years, doctors are usually not employees, at least not if they have their own practices. Although not employees, physicians may affiliate with a larger union to use that broader bargaining power, a purpose that is permissible under current law. Membership in a union does have its responsibilities and disadvantages. Some have suggested that the definition of employee be broadened to cover physician duties under managed care payer agreements, for example. Meanwhile, the Federal Trade Commission and the Justice Department are watching that non-employee physicians not use the union label to mask price fixing, boycotts or refusals to deal.

Antitrust Laws↗

Group life & Health Insurance Co. v. Royal Drug Co.: the McCarran-Ferguson Act and Health Service Plans.

Until recently, contractual relationships between health care providers and health insurers appeared to be immune from antitrust scrutiny. The Supreme Court ended this apparent immunity in Group Life & Health Insurance Co. v. Royal Drug CO., 440 U.S. 205 (1979), holding that insurance plans offering goods and services to policyholders are not exempted by the McCarran-Ferguson Act from the federal antitrust laws. By denying a McCarran-Ferguson exemption, the Court did not decide the ultimate issue--whether the insurers in fact had violated federal antitrust law. This Note reviews Royal Drug in light of precedent and of the purpose of the McCarran-Ferguson Act. This Note contends that the result in Royal Drug follows logically and consistently from the Court's earlier readings of the Act, but that the Court's reasoning is unclear and, even under its strongest reading, unconvincing; hence, an alternative approach to interpreting and applying the McCarran-Ferguson Act is suggested. Finally, this Note analyzes the application of Royal Drug by lower federal courts and discusses its implications for the interface of health law and antitrust law.

Commerce↗

Antitrust, health care quality, and the courts.

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.

Antitrust Laws↗

Clinical integration and new options for academic medical institutions in network development.

The author outlines two options, made possible by developments in antitrust law, that can create a favored role for academic health science centers as well as for stand-alone medical schools and teaching hospitals, using the unique strengths of these institutions that are often considered weaknesses by the marketplace. The first option is the development of clinically integrated collaborations that need not be either system-wide or necessarily governed by total quality management processes, or involve the characteristics of ownership typical of the usual integrated delivery systems. The second option is the development of new clinical "products." Each option encourages creative financing, legal, medical, and governance approaches and makes it possible for centers, medical schools, and teaching hospitals to build multi-provider collaborations that are in harmony with their missions and different from the less-compatible integrated delivery systems that they often seek to build. The author provides an extensive background on antitrust law to explain the two options and the criteria for crafting them within antitrust law. He then describes how antitrust law applies to multi-provider networks and in particular to academic health science centers and free-standing medical schools and teaching hospitals, and gives examples of the kinds of fruitful collaborations these institutions could engage in. He urges those institutions to realize that if they keep faith with their best characteristics in creative new ways (such as those suggested by his article), they will thrive in the years ahead.

Academic Medical Centers↗

Antitrust implications of physicians' responses to managed care.

As members of the IDSA, you are well aware that, increasingly, private market forces are dramatically transforming the organization of medical care. According to a recent article in the New York Times, almost two-thirds of people insured through employers received their health care from some kind of managed care arrangement in 1994; this figure compares with 47% only 3 years ago. Our members in private practice and in academic medicine are constantly confronted with demands from managed care organizations to control costs and to accept various forms of oversight over medical decision making. Responses by physicians to these demands can involve scrutiny under federal and state antitrust laws. For this reason, we have asked IDSA's counsel, Hogan & Hartson in Washington, D.C., to advise the membership of principles involving the applicability of the antitrust laws within the context of managed care. They have prepared the following article in response to our request. As the authors point out, there are steps that physicians can take in efforts to negotiate successfully with managed care organizations, but some types of conduct run the risk of running afoul of the antitrust laws. In addition, as they suggest, physicians should consult competent counsel before they collaborate with other physicians to respond to the new managed care environment. We recommend careful attention to this timely article and hope you find it useful.

Antitrust Laws↗

The development of preferred provider organizations and its antitrust implications.

The preferred provider organization (PPO) is rapidly evolving as a major innovation in the health care industry. Its development has had serious legal antitrust implications. Health care is rapidly becoming more businesslike. Third party payers as well as providers are aggressively pursuing market shares. This has led to combinations and price negotiations that have often confronted the antitrust laws. The PPO is a most prominent example. This article is addressed to a wide range of health professionals. Initially, those antitrust laws applicable to the health care industry are presented. A discussion of the development and structure of PPOs follows. Special attention is directed toward the applicability of the antitrust laws to various forms of PPOs. Although each case must be decided upon its merits, guidelines are suggested to avoid the pitfalls of antitrust prosecution and litigation.

Economic Competition↗

"Free choice" as a restraint of trade, and the counterintuitive contours of competition.

This article explores the important implications of the little-noticed 1979 Federal Trade Commission ruling that the American Medical Association's ethics requiring "free choice" of physician violate the nation's antitrust laws. "Free choice" as it was known to the health care community for decades suddenly was illegal. To examine this counterintuitive aspect of competition, the article begins by defining two types of free choice. The AMA's free choice ethics, ruled inconsistent with antitrust law, is termed "guild free choice." The other, consistent with antitrust principles, is termed "market free choice." The distinction between market free choice and guild free choice provides a simple yet powerful tool for understanding many of the novel issues raised by the fundamental restructuring of the health care industry currently under way in the United States. For example, market free choice, deduced from the FTC ruling and the antitrust laws, is shown to be equivalent to proposals by Ellwood, McClure, and Enthoven for market reform. A history of American health care delivery and insurance from a free choice perspective reveals three historic periods: a market free choice era from 1870 to 1932, a guild free choice era from 1933 to 1982, and an emerging market free choice era today. Finally, the distinction is seen to undermine the conventional wisdom held by many physicians, economics and health care policy analysis.

American Medical Association↗

Antitrust and IDNs (integrated delivery networks): how far can we go?

Since the 1970s, the outcomes in antitrust actions against healthcare facilities have become significantly more predictable. But there are still differences of opinion among healthcare providers and antitrust enforcers as to how far antitrust enforcement activities should go. Antitrust enforcement involves a determination of reasonable and unreasonable activities, rather than the application of clear rules. This can lead to confusion over what is legal and may inhibit providers from engaging in collaborative efforts. Intent is very important in antitrust matters. A cooperative venture's effect on the consumer is the primary factor in the enforcers' consideration of whether it is reasonable. Thus well-planned and appropriate healthcare ventures will succeed in most places. Congress has been considering the antitrust implications of healthcare reform. To date, however, there is no consensus on what antitrust laws need changing, if any, or whether new definitions or exemptions could address the problem. Integrated delivery networks (IDNs), the central feature of many healthcare reform proposals, could raise many classic antitrust concerns. Antitrust enforcers' interest in these arrangements will vary according to their effect on competition. Any attempts to establish IDNs will need to also ensure clear language exists regarding the reach of antitrust laws.

Antitrust Laws↗

Comment on Kartell v. Blue Shield of Massachusetts, Inc.: an antitrust analysis of Blue Shield's reimbursement schemes.

In Kartell v. Blue Shield of Massachusetts, Inc., the First Circuit held that Blue Shield's reimbursement practice known as the "ban on balance billing" did not constitute an unlawful restraint of trade in violation of the antitrust laws. Underlying the First Circuit's decision was deference to what it viewed as efforts by Blue Shield and by the Commonwealth to promote cost containment. This Comment argues that, to the contrary, under an appropriate analysis of antitrust law, the practices employed by Blue Shield did constitute unreasonable restraints of trade on the physicians' service industry in Massachusetts, given Blue Shield's market dominance in the Commonwealth. The Comment also argues that such inhibition of the competitive functioning of this industry is unwise, and that costs should instead be contained by effectuating the antitrust laws and encouraging the development of competitive forces within this industry.

Blue Cross Blue Shield Insurance Plans↗

Antitrust and hospital mergers: does the nonprofit form affect competitive substance?

Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context in which these institutions operate is never far from the surface, it takes issue with the proposal to cabin merger doctrine so as to deny the significance of nonprofit status in merger analysis. Given the dynamic change in the regulatory climate and heterogeneity of local health care markets, it advises courts not to accept the FTC's preemptive standard regarding the significance of hospitals' nonprofit status and keep open the possibility of fashioning new presumptive rules tailored to more complete economic accounts of nonprofit firm behavior.

Antitrust Laws↗

Why don't courts treat hospitals like tanks for liquefied gases? Some reflections on health care antitrust enforcement.

In this article, I use the Federal Trade Commission and the Department of Justice 2004 report Improving Health Care: A Dose of Competition as an occasion to comment on two specific issues that have arisen in health care antitrust: the recent string of losses by the enforcement agencies in hospital merger cases and an antitrust exemption for physicians to bargain collectively with health insurers. One of the more salient facts about health care antitrust enforcement is the notable recent lack of success of the enforcement agencies in hospital merger cases. This may be due to judges and juries holding views of hospital markets as being different from markets for other goods and services. My conclusion is that hospitals are an industry with unique attributes, but nothing about the specifics of the health care industry suggests that the unregulated use of market power in this industry is socially beneficial. As a consequence, the antitrust laws should be enforced here as in any other industry. Countervailing power is an issue that has come to the fore in health care antitrust. Physicians have explicitly asked for legislative exemption from the antitrust laws in order to bargain collectively with insurance companies, as a means of counteracting insurers' monopsony power. It is not clear that health insurers possess significant monopsony power. Even if they do, bestowing monopoly power on physicians will not necessarily improve matters. Active antitrust enforcement in insurance markets is the correct response, not blanket exemptions for providers.

Antitrust Laws↗

Federal antitrust policy and physician discontent: defining moments in the struggle for congressional relief.

Organized medicine has battled the Federal Trade Commission (FTC) since the 1970s over enforcement of the antitrust laws. Physicians' discontent stems from the belief that federal policy allows managed care organizations to achieve dominance in health care markets just as it discourages physicians from taking collective action to protect their interests. This article examines two important efforts by organized medicine over a twenty-year interval to alter federal antitrust policy. In 1982, physicians and other professionals sought a special exemption from FTC jurisdiction; beginning in 1998, physicians promoted legislation that would exempt independent practitioners from the antitrust laws for collective bargaining purposes. Both initiatives passed in the House of Representatives but failed in the Senate. This article uses an advocacy coalition framework to reinterpret the events and to assess the reasons for legislative failure. The evidence suggests that in both instances, although twenty years apart, consumer groups and federal bureaucrats determined the outcome in favor of corporate medicine.

American Medical Association↗