Opinion | A Corporate Merger Cost America Ventilators

In most markets, such exploitative tactics are difficult to sustain, because customers would revolt. But health care markets are different. For many drugs or treatments, there are no realistic substitutes. And the markets are further complicated by insurance and government involvement — and ultimately, by the fact that we care about human health in ways that are hard to quantify.

Perhaps the greatest calamity, in terms of harm done, has been the F.T.C.’s inability over the past two decades to stop hospital consolidation, despite its best efforts and growing evidence of negative effects. In theory a hospital merger might produce welcome efficiencies, but in practice too many hospital mergers tend to yield higher prices and lower quality of care (measured by morbidity), not to mention bed shortages. After a bad hospital merger, patients pay more and die more.

To its credit, the F.T.C. has tried hard in this area, litigating aggressively to stop the most outrageous hospital mergers. Yet despite notable victories in court, the agency’s case-by-case approach has not effectively stopped the waves of hospital consolidation.

Very few observers who are not on the industry’s payroll find it easy to defend what has happened over the past decade when it comes to health care mergers. Action is overdue. The F.T.C. might, as Commissioners Rohit Chopra and Rebecca Slaughter have urged, dig deeper into its own authority and begin writing special rules for the worst abuses. Congress, which is considering the first major antitrust overhaul since 1914, might create special scrutiny for health care transactions, sensitive to their broader effects.

What’s certain is that we can do better. In an alternative universe, the F.T.C. lawyers scrutinizing the Newport deal, equipped with greater authority and resources, might have flagged the acquisition as suspicious, consulted the Department of Health and Human Services and made the deal contingent on full performance of the federal contract for ventilators. And now, instead of squabbling for supplies, we might be facing the coronavirus crisis with a stockpile of new ventilators — grateful for the foresight of the federal government and the vigilance of the F.T.C.

Tim Wu (@superwuster) is a law professor at Columbia, a contributing opinion writer and the author, most recently, of “The Curse of Bigness: Antitrust in the New Gilded Age.”

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