Revisiting the Brown Shoe Indicia for Defining Markets

In the 2023 Merger Guidelines, the Department of Justice and the Federal Trade Commission appear to favor the Brown Shoe Indicia for defining markets over the Hypothetical Monopolist Test. The Supreme Court introduced the use of seven indicia for a relevant submarket over 60 years ago, well before the development of substantial computing power and modern econometrics. In this paper, we revisit the Brown Shoe Indicia and their current vitality.

By Roger D. Blair & Kamal Sodhi[1]

I. Introduc