A first challenge is how to conduct forward-looking competitive assessments in hectic market conditions. Merger revisions assess the impact of transactions relative to the circumstances that prevail in the absence of the transaction (i.e. a counterfactual transaction). In most cases, the infringer assumes the competitive conditions that prevailed at the time of the merger and takes into account reasonably foreseeable market changes in the future. In times of turbulence, it becomes more difficult to identify the relevant infringer. Therefore, competition authorities must consider the possibility of adapting different elements of their analysis – the relevant timing for analysis, the relevance of available historical data on more stable market conditions, or the standard for determining relevant counterfactual data. Good practice recognizes that cooperation is most effective when review times for regulators are more or less parallel. Mergers therefore have the opportunity to meet with agencies at an early stage to discuss scheduling issues. Companies are also invited to allow agencies to exchange information they have provided as part of an investigation and, if necessary, to allow joint talks between the EU and the US and the companies concerned.
These practices identify key points in surveys of mergers conducted in the EU and the United States, where it may be appropriate to establish direct contacts between senior officials of both parties. In terms of advice and decision-making, competition authorities must respond very quickly to requests for business advice. This can be done, for example, through general guidelines to help firms determine ex ante whether proposed cooperation can cause problems or by providing exemptions by category to exclude the application of competition law to a given sector for a specified period of time. Another alternative is to authorize or require private companies to notify the competition authority of the cooperation agreement, so that the Agency can verify the legality of the cooperation after the fact without creating an ex ante barrier to the implementation of the agreement. Many authorities have put in place mechanisms to quickly provide ad hoc advice in the form of comfort letters or similar means, in order to ensure their timely response. Under the rules of positive competitiveness, one party may ask the other party to attack anti-competitive behaviour which originates on its territory, but which also concerns the applicant. The agreement clarifies both the mechanisms of the positive cooperation instrument and the circumstances under which it can be used. Positive advertising provisions are not often used because companies (i.e. complainants) prefer to go directly to the competition authority, which they deem most appropriate to deal with the situation. One of the main drivers of the merger activity in times of crisis is the increase in the number of companies that are sinking. At the same time, the lack of a firm defence is expected to be more frequently solicited. The reason for the failure of the company`s doctrine is that if an asset inevitably left the market, the transaction might have no fewer anti-competitive alternatives, despite the resulting increased market power.
There is a general consensus that this defence should only be accepted if three cumulative conditions are met: (i) in the absence of concentration, the bankrupt company would soon leave the market because of its financial difficulties; (ii) there is no other viable, less anti-competitive transaction or restructuring than the proposed merger; and (iii) in the absence of the merger, the assets of the defaulted company would inevitably be taken off the market.