Critics of vertical integration primarily focused on two theories of potential harm: leverage and foreclosure. Leverage reflects the idea that a firm can use its dominance in one line of business to establish dominance in another. Because “horizontal power in one market or stage of production creates ‘leverage’ for the extension of the power to bar entry at another level,” vertical integration combined with horizontal market power “can impair competition to a greater extent than could the exercise of horizontal power alone.”
115 Foreclosure, meanwhile, occurs when a firm uses one line of business to disadvantage rivals in another line. A flourmill that also owned a bakery could hike prices or degrade quality when selling to rival bakers—or refuse to do business with them entirely. In this view, even if an integrated firm did not directly resort to exclusionary tactics, the arrangement would still increase barriers to entry by requiring would-be entrants to compete at two levels.
When seeking to block vertical combinations or arrangements, the government frequently built its case on one of these theories—and, through the 1960s, courts largely accepted them.
116 In Brown Shoe v. United States, for example, the government sought to block a merger between a leading manufacturer and a leading retailer of shoes on the grounds that the tie-up would “foreclos[e] competition” and “enhanc[e] Brown’s competitive advantage over other producers, distributors and sellers of shoes.”
117 The Court acknowledged that the Clayton Act did not “render unlawful all . . . vertical arrangements,” but held that this merger would undermine competition by “foreclos[ing] . . . independent manufacturers from markets otherwise open to them.”
118 In other words, the concern was that—once merged—the combined entity would forbid its retailing arm from stocking shoes made by competing independent manufacturers. Calling this form of foreclosure “the primary vice of a vertical merger,”
119 the Court noted it was also largely inevitable: “Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement.”
120 In his partial concurrence, Justice Harlan observed that the deal would enable Brown to “turn an independent purchaser into a captive market for its shoes,” thereby “diminish[ing] the available market for which shoe manufacturers compete.”
121 The Court enjoined the merger.
122
Another reason courts cited for blocking these arrangements was that vertical deals eliminated potential rivals—a recognition of how a merger would reshape industry structure. Upholding the FTC’s challenge of Ford purchasing an equipment manufacturer, the Court noted that before the acquisition, Ford had helped check the power of the manufacturers and had a “soothing influence” over prices.
123 An outside firm “may someday go in and set the stage for noticeable deconcentration,” the Court wrote.
124 “While it merely stays near the edge, it is a deterrent to current competitors.”
125 In other words, the threat of potential entry by Ford—the fact that, pre-merger, it could have internally expanded into equipment manufacturing—had played an important disciplining role. Relatedly, the Court observed that when a company in a competitive market integrates with a firm in an oligopolistic one, the merger can have “the result of transmitting the rigidity of the oligopolistic structure” of one industry to the other, “thus reducing the chances of future deconcentration” of the market.
126 The Court required Ford to divest the manufacturer.
127