IFTC v. Evanston: antitrust enforcement of hospital mergers receives a shot in the arm

This article examines the Federal Trade Commission's Evanston decision and assesses its future impact on hospital merger analysis. In finding that a consummated merger of two Chicago-area hospitals violated the antitrust laws, the FTC analyzed the merger using a unilateral effects theory of anticompetitive harm. This theory entails examining the competitive impact on third-party payors as a result of the loss of competition between the merging hospitals, rather than the traditional market share and market structure data relied upon in earlier court decisions. After a detailed discussion of the Evanston decision and the history of hospital merger litigation leading up to it, the authors argue that while the Evanston decision indicates that the government will use unilateral effects analysis in challenging future hospital mergers, this analysis is fraught with litigation challenges. The government's next case will not have the benefit of a strong evidentiary record as in Evanston, thereby making it more difficult for the government to prove its unilateral effects theory.