Courts reviewing proposed mergers of nonprofit hospitals have been abandoning the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition - maximizing allocative efficiency and total surplus. This article suggests that courts' inability to recognize antitrust concerns in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have denied challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protect nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the bedrock principles of antitrust law - preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency - that have been absent from, if not violated by, the rulings in these merger cases.

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.

The health care industry continues to undergo unprecedented consolidation. Health care providers and payors alike have pursued a wide variety of integrative strategies to achieve efficiencies or other business advantages. The Health Care Mergers and Acquisitions Handbook is designed to educate the practitioner about the antitrust analysis of mergers and acquisitions within the health care industry. Over the past two decades there has been an extraordinary amount of litigation related to challenges of hospital mergers. Each chapter identifies and analyzes important antitrust issues governing such consolidations. Accordingly, the first several chapters are devoted to a detailed treatment of substantive issues peculiar to such mergers: an introduction to hospital merger litigation, describing trends in litigation and the way in which such mergers are analyzed; issues unique to market definition, including product market definition and geographic market definition; the competitive effects of hospital mergers, assessing the evidence necessary to establish a prima facie case in a merger challenge and the rebuttal arguments offered by merging parties; a unique rebuttal argument offered by merging hospitals that is treated separately due to its prominent role in hospital merger litigation - the role and significance of efficiencies in determining the competitive merits of such mergers; the potential applicability of the state action doctrine to hospital mergers. In addition to a substantive treatment of hospital mergers, the Handbook also addresses; combinations of health care management organizations (HMOs) and physician practice groups; the analysis used by the enforcement agencies when reviewing mergers of HMOs; antitrust issues posed by physician practice consolidations. The appendix contains a chart summarizing litigated hospital mergers.--

Several theories of nonprofit hospital behavior predict that nonprofit hospitals behave in the consumer interest and thus do not exercise market power. If these theories are correct, then antitrust enforcement of hospital mergers should be restricted only to those markets in which a nonprofit hospital cannot offset anticompetitive behavior by for-profit hospitals. In this book, we measure a hospital's market power using two alternative measures. The first is the HHI for a county; the second is the distance from a hospital to its closest competitor. For both measures, we find that nonprofit hospitals set higher prices when they have more market power.

Nonprofit hospitals receive favorable tax treatment in exchange for providing socially beneficial activities. Extending this rationale suggests that nonprofit hospital mergers should be evaluated differently than mergers of for-profit hospitals because suppression of competition may also allow nonprofits to cross-subsidize care for the poor. Using detailed California data, we find no evidence that nonprofit hospitals are more likely than for-profit hospitals to provide more charity care or offer unprofitable services in response to an increase in market power. Therefore, we find no empirical justification for different antitrust standards for nonprofit hospitals, as some courts have suggested.