Policy Brief: What is Competition on the Merits?

There is broad agreement among competition agencies from OECD countries that the purpose of competition policy is to protect competition, not competitors. In pursuing that objective, many agencies and courts have repeatedly used the phrase “competition on the merits” to explain and
justify their views on how to distinguish conduct that harms competition from conduct that advances it. Yet that phrase has never been satisfactorily defined. This has led to a discordant body of case law that uses an assortment of analytical methods. That, in turn, has produced unpredictable results and undermined the term’s legitimacy along with policies that are supposedly
based on it.