Merger Enforcement guidelines in Japan: Does Japan need the efficiency defence?

Over the past two decades there has been a dramatic increase in merger activity in Japan. In response, the Japan Fair Trade Commission (JFTC) published guidelines to inform stakeholders how it implements the merger provisions of the Anti-Monopoly Law (AML). Recently the JFTC has incorporated an expanded efficiency defence available to merging parties. This research provides a critical appraisal of the JFTC’s efficiency defence guidelines. It begins with a review of the development of the AML. This is followed by a description of the recent changes in the type and level of merger activity in Japan. The theoretic foundations for different welfare standards underlying an efficiency defence are explained. The JFTC’s efficiency defence guidelines are set out and are contrasted with relevant guidelines in other countries. Finally, the JFTC’s efficiency defence guidelines are critically evaluated in terms of the need for such a defence, and the workability of the rules.