Section 7 of the Clayton Act. This is because it is likely that defendants will be able to prove that the potential entry by new or existing firms into the pump dispenser market as I've defined the market above will prevent sustained unjustified price increases by the merged firm. For example, United States v. Waste Management, Inc., supra.
I have pursued the usual step-by-step procedure of determining the relevant market, examining the market structure before and after the merger, and analyzing the mitigating factors. However, if one were to look at the totality of this particular market, one notes that it is so fluid and volatile both from the perspective of the product user and from the perspective of the product supplier, that it is unlikely that any firm, no matter how great its market share may be at any given time, could exercise market power very long. Let me note some of these factors.
1. The products themselves are simple, inexpensive, easily duplicated and easily modified or adapted to countless uses and esthetic tastes.
2. The use of these pump dispensers are as numerous as there are liquid products which must be extracted from containers.
3. There are a number of alternatives to pump dispensers which are or can be used.
4. Consumer tastes for the manner of dispensing liquids and for the appearance of the dispensing agent vary widely and shift. These shifts may appear to be spontaneous or they may be a response to promotional efforts of the sellers of liquid products.
5. There are alternative ways that a user can obtain pump dispensers -- from various existing suppliers, by manufacturing them themselves, by assisting or joining with a new supplier to commence production.
6. A large number of firms have the capabilities of manufacturing any of the kinds of dispensing pumps which were in the market.
The degree of concentration of the pump dispenser market after the merger of Calmar and Realex would be so great that the Department of Justice had an obligation to challenge the merger on antitrust grounds. However, Calmar and Realex have sustained their burden of establishing, at least at this point in the case, that in this particular market the degree of concentration will not result in a substantial lessening of competition.
The government having failed to establish that it is likely to succeed on the merits, its application for a preliminary injunction will be denied.
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