The Softer Side of Antitrust: Why Department Stores Matter

Mark D. Bauer, Stetson University College of Law

Abstract

In 2005, Macy’s bought its largest competitor, May Department Stores, for $17 billion. The resulting combination created a department store behemoth with over one thousand stores across the United States. Despite protests by the attorneys general of a number of states, and consumers and advocacy groups around the country, the Federal Trade Commission (“FTC”) blessed this merger without requiring any modification in its terms. And according to law and economics scholars, this merger had no substantive impact on consumers, competition or consumer welfare.

My empirical research, published in an earlier law review article, showed that Macy’s now charges consumers 13% more than it did before the merger. My empirical research only told part of a very compelling story; this article tells the rest. Department stores are an important part of the fabric of American life. For example, more than two years after Macy’s changed the name of all Marshall Field’s stores in Chicago, people are still picketing the store – in fact they led a large protest at Macy’s most recent annual stock holder’s meeting. Barely a day goes by without a major newspaper featuring a story on the plight of American department stores and consumer angst over these destructive changes.

The FTC, which investigated Macy’s acquisition of May, may have erred. This article explains the relevant history of department stores, analyzes the FTC’s flawed investigation of the deal, and critiques the narrowly applied law and economics analysis that led to these incorrect conclusions.