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AA, US Airways Fire Back At DOJ In Court Filings

By Jay Boehmer / September 11, 2013 / Contact Reporter
Business Travel News on X

American Airlines and US Airways in separate court filings on Tuesday struck back at the U.S. Department of Justice, claiming its suit to block their merger is built on faulty analysis, unsubstantiated allegations and a selective memory when it comes to the airline industry.

The airlines' stance already has been aired in the past month through numerous public statements, but Tuesday's filings are the airlines' first official response in court to the allegations in DOJ's complaint, initially filed last month in the U.S. District Court for the District of Columbia and bound for trial in late November.

The airlines in their filings denied DOJ allegations that their merger will raise fares, increase ancillary fees and reduce competition.

"The airline industry is intensely competitive today and would remain so after this transaction," argued American Airlines. "Air travelers today receive more service to more places at lower prices (properly adjusted for inflation and other relevant factors) than ever before. The complaint ignores this reality, and instead concocts an imaginary narrative where airlines tacitly collude and where prices are higher than in the past, but the real facts are just the opposite."

US Airways even claimed that DOJ itself is lessening competition "by precluding the market from creating new and competitive flight options for passengers"—namely, the consummation of their merger.

A Selective View? 

US Airways argued that DOJ's complaint, which has been joined by a growing coterie of state attorneys general, often focuses too narrowly on airline competition among legacy airlines, often ignoring "the most meaningful competitive development in the airline industry since deregulation: the emergence of low-cost carriers."

Such carriers would include the largest U.S. airline in terms of enplaned domestic passengers, Southwest Airlines, as well as JetBlue, Spirit Airlines, Virgin America, Sun Country, and Allegiant, which collectively "are expanding at dramatic rates," according to US Airways.  

Those carriers, together with "regional competitors Alaska Airlines and Hawaiian Airlines, now transport over 40 percent of all domestic passengers, and that share continues to grow," US Airways noted.

Regarding the remaining competitive set in the U.S. airline industry, US Airways noted that the DOJ in recent years approved the Delta-Northwest and United-Continental mergers, helping to create "airlines with much larger and more comprehensive networks than either American or US Airways."

Meanwhile, the carriers argued that the DOJ complaint paints a thriving airline industry that is swimming in profits, when a further step back reveals a different picture. "US Airways has undergone two bankruptcies in recent years, and American has undergone one, from which it has not yet emerged," according to American Airlines. "Together, the two airlines lost almost $14 billion in the last twelve years, and the uncertainty and shocks that have prevailed in today's airline industry make the need for their combination all the more important to consumers."

Carriers: DOJ Analysis "Quaint" 

DOJ's complaint leans heavily on an application to individual city pairs of the Herfindahl-Hirschman Index, a measure of a company's market power relative to competition.

DOJ found high HHI figures for "more than 1,000" of the merged carrier's routes, posing what it called potential anticompetitive harm. However, AA noted that "almost 90 percent of the passengers on these routes will continue to be served by at least three airlines after the merger" and about "85 percent of passengers on these routes" will continue to be served by a low-cost carrier.

Furthermore, AA argued that "virtually none of the routes have any barriers to new entry," suggesting opportunities for new competitors to emerge. A key exception would be the merged carrier's presence at the slot-constrained Ronald Reagan Washington National Airport.

AA also noted that DOJ "ignores that other recent airline mergers resulted in comparable HHI values and were nonetheless approved and lauded by the DOJ because across the entire network the net benefits stemming from the transactions were overwhelmingly positive."

The carriers at various times in their filings suggested DOJ is applying different standards to their merger than it has to prior airline deals. "DOJ's approach in evaluating those earlier mergers—unlike in this transaction—was fully consistent with its own merger guidelines, which recognize that market shares and HHI numbers are merely starting points for analysis, not the decisive results portrayed in this complaint," according to AA's filing.

Added AA, "Doing competitive effects analysis by simply counting competitors might have been accepted practice four decades ago, but seems quaint at best today. It is inconsistent with the state of the law and with the DOJ's own Horizontal Merger Guidelines."

US Airways asked the court not to focus on "the few aspects of the intensely competitive airline industry plaintiffs do not like, or a comparison to some hypothetical state of the airline industry that plaintiffs would prefer," but rather determine "whether this airline merger would result in a 'substantial lessening of competition,' relative to what would happen absent the merger."

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