Statement of Commissioner Orson Swindle
Concurring in Part and Dissenting in Part

BP/Amoco, Docket No. C-3868

The Commission's complaint alleges that the merger of Amoco Corporation ("Amoco") and British Petroleum Company p.l.c. ("BP") is likely to substantially lessen competition or tend to create a monopoly in certain terminaling markets and in certain markets for the wholesale sale of gasoline.

I agree that the merger is likely to have anticompetitive effects in terminaling markets and that the divestitures that would be required adequately remedy these antitrust violations. However, because

the merger is unlikely to have anticompetitive effects in southeastern United States markets for the wholesale sale of gasoline,⁽¹⁾ I dissent from the allegations and relief related to those markets.

Refined gasoline is transported by pipeline from the refinery to gasoline terminals. Wholesalers sell refined gasoline from terminals to retail gasoline stations. Retail gasoline stations may be either unbranded or branded. Unbranded retail gasoline stations do not display the brand of a wholesaler and do not sell branded gasoline. In contrast, branded retail gasoline stations display the brand of the wholesaler, such as "Amoco" or "Texaco," and sell the wholesaler's brand of gasoline, which is refined gasoline plus proprietary additives.

Among branded retail gasoline stations, there are various types of ownership and operation arrangements. The wholesaler may itself own and operate the retail gasoline station (a "company station"). The wholesaler may own the retail gasoline station but lease the station pursuant to an agreement that requires the operator (a "lessee/dealer") to purchase branded gasoline from the wholesaler. The wholesaler may have franchisees ("open dealers") who sell branded gasoline pursuant to a franchise agreement. Finally, the wholesaler may sell branded gasoline to independent firms known as "jobbers" that distribute the branded gasoline to retail gasoline stations (which are sometimes owned by the jobber).

The complaint alleges, among other things, that the merger of Amoco and BP, both wholesalers of branded gasoline, would have an anticompetitive effect in certain southeastern United States markets for the wholesale sale of gasoline. Each of these markets would be moderately concentrated or highly concentrated after the merger, which would significantly increase the levels of concentration in these markets. The theory is that because these markets would be concentrated following the merger, wholesalers could coordinate the wholesale price of gasoline, which, in turn, would harm consumers by causing higher gasoline prices at the pump.⁽²⁾

Any effort by wholesalers to pass on a collusive price increase would be defeated if enough branded retail gasoline stations switched to other wholesalers rather than pay the higher price. Entry by new wholesalers offering lower prices could defeat a collusive price increase, and such entry is likely if there are enough branded retail gasoline stations that could switch and become customers of the new wholesale entrant.⁽³⁾ Cheating by an existing wholesaler on a collusive price also is likely if enough branded retail gasoline stations would switch to make cheating worthwhile.

Is such switching likely to occur? I certainly think so.⁽⁴⁾ An evaluation of the southeastern markets reveals that switching is already the reality, not mere speculation or prediction.

Unlike company stations and lessee/dealer stations, open dealers and jobbers have the option of responding to their wholesaler's collusive price increase by switching to another wholesaler. Open dealers and jobbers currently (and with some frequency) switch relatively easily and quickly⁽⁵⁾ in response to changes in market conditions, including trying to combat price increases. Open dealers and jobbers have stated that they would in fact switch in response to a price increase attributable to the merger, and they have explained that they would not anticipate significant problems in switching.

Would enough branded retail gasoline stations in the southeastern markets be willing to switch to make possible new wholesale entry or cheating by an existing wholesaler? Again, I certainly think so. In most of these markets, open dealers and jobbers purchase from about 60 percent to about 80 percent of the gasoline that is sold at retail.⁽⁶⁾ Given that open dealers and jobbers account for such a large proportion of retail gasoline sales and that they are likely to switch, enough switching likely would occur to induce entry or cheating sufficient to defeat a collusive price increase by wholesalers.

The majority of the Commission emphasizes that the concentration levels in these markets create a presumption of anticompetitive effects and that history demonstrates that switching to new wholesale entrants is unlikely to prevent these effects. Specifically, the majority believes that open dealers and jobbers will switch primarily to incumbent wholesalers. The majority reasons that switching will be limited primarily to incumbent wholesalers because many of them offer benefits (such as local marketing or brand credit card programs) that would not be offered by a new wholesale entrant.

The investigative record is to the contrary. While there has been significant switching by open dealers and jobbers among incumbent wholesalers, there also has been significant switching away from incumbent wholesalers to new branded wholesalers and new unbranded wholesalers.⁽⁷⁾ Moreover, open dealers and jobbers have stated that they would switch in response to a collusive price increase, but have not stated that their switching would be limited to moving from one incumbent wholesaler to another. Detailed economic analysis has shown that whatever non-price benefits incumbent wholesalers may be able to offer to open dealers and jobbers, they are unlikely to induce open dealers and jobbers to ignore promising opportunities offered by new wholesale entrants.⁽⁸⁾

Because switching is likely to defeat any collusive price increase, the merger of Amoco and BP is unlikely to have anticompetitive effects in the southeastern United States markets for the wholesale sale of gasoline. The Commission nevertheless has extracted from the merging parties a variety of costly concessions designed to facilitate switching and improve the marketplace.⁽⁹⁾ As explained above, because market forces are likely to cause sufficient switching without government intervention, these measures are simply unnecessary. The Commission thus should have allowed the merger of Amoco and BP to proceed with antitrust relief limited to terminaling as well as the Ohio and Pittsburgh, Pennsylvania wholesaling situations.⁽¹⁰⁾

I therefore dissent from the aspects of this matter dealing with gasoline wholesaling in the southeastern United States markets identified in Paragraph 19 of the complaint.

1. The "southeastern United States markets for the wholesale sale of gasoline" include all of the "gasoline markets" described in Paragraph 19 of the proposed complaint except those located in Ohio and Pittsburgh, Pennsylvania. I support the Commission's action in the Ohio and Pittsburgh wholesaling markets.

2. There is no evidence that wholesalers in these markets have already attempted to collude.

3. Because the order should help ensure that gasoline terminaling markets in the southeastern United States remain competitive, a new wholesale entrant would be able to purchase gasoline at terminals to sell to jobbers.

4. None of the public comments supplied analysis or data directly bearing on the issue of whether switching was likely to occur in these markets in the absence of the relief prescribed by the order.

5. Switching can occur relatively quickly because, although any individual open dealer or jobber may have to wait for its contract to expire before it can switch, the short-term nature of contracts between Amoco and open dealers and jobbers means that some of those contracts are expiring at any given time. Station switching also can occur relatively inexpensively, especially because new wholesalers often reimburse open dealers and jobbers for the costs incurred in switching.

6. By contrast, in other investigations the Commission has determined that sufficient switching would not occur in markets that are dominated by company stations and lessee/dealer stations.

7. For example, by offering lower prices to induce switching, Citgo has been able to enter Florida and Coastal has expanded in South Carolina. Similarly, by offering lower prices to induce switching, unbranded wholesalers (such as Kwic Trip, Racetrac, Speedway, Smile, Wilco, and Hess) also have been able to enter many of these markets.

8. The majority also posits that instead of switching, open dealers and jobbers may decide to accept a collusive price increase, pass it on consumers at the pump, and share in the profit from the price increase. For an open dealer or jobber to share in the profit from a collusive increase, it would have to be confident that increased prices at the pump would not be undercut by other retailers. Given that wholesalers do not control the pricing at most retail gasoline stations in these markets, open dealers and jobbers would have good reason to worry that any collusive price that they sought to impose would be undercut, especially to the extent that there are unbranded retail gasoline stations in these markets.

9. Because they distort the usual market incentives of jobbers, the order provisions designed to promote switching also may have unintended and unforeseen consequences in the marketplace.

10. The majority has revised the order to respond to public comments regarding the provisions designed to promote switching. Assuming for the sake of argument that the types of provisions contained in the proposed order were needed to promote switching, the revisions contained in the final order are reasonable.