U.S. airlines have always argued that consolidation is not only good for them, but is also good for the consumer—and now that theory will be tested in court.

Regardless of the outcome in what now becomes a very public fight with the federal government over the proposed merger of US Airways and American Airlines, the antitrust suit that the Justice Department filed last week represents a tectonic shift. No longer, the government signaled, will it analyze the impact of mergers and acquisitions (M&A) on prices and competition mainly on nonstop routes between cities. Now, the full panoply of connections will be examined, with routes through third cities getting much more emphasis.

Firing a cannonball though the two carriers' oft-cited datum of overlapping on a mere 12 routes, Justice said it found 1,044 city pairs in which a combined US-AA would be bad news for ticket buyers.

“They have finally figured out that this is a network business,” airline regulation scholar Michael Levine says of the government's lawyers. Levine, an architect of deregulation under Civil Aeronautics Board Chairman Alfred Kahn in the 1970s, adds, “Competition policy in this area should balance the public benefits of expanding networks against the cost of tightening the oligopoly, and the balance in this case from the consumer perspective comes out strongly against approving the merger.”

But US Airways and American say they will fight back vigorously. They will argue that the combination would allow them to compete against the other two big domestic network carriers—United Airlines and Delta Air Lines—to force prices lower.

And they have some influential allies in making the case that the government is ignoring the benefits of a healthy airline industry. The Air Line Pilots Association says Justice has “interfered with the steady progress that the airline industry has made to achieve an economically rational yet vigorously competitive industry. . . . By filing this lawsuit, the department has completely ignored decades of instability in the airline business that has caused many carriers to go out of business.”

The Justice action initially sent stockprices plummeting.

“I don't know of anyone who had seen this coming,” says George Hamlin, president of Hamlin Transportation Consulting, although some argue the carriers must have suspected trouble by the nature of the questions from the Justice Department.

The planned merger was supported by all of the constituents in the industry and even American's large competitors—Delta and United—were officially in favor of it for the same reasons that Justice is now opposing it: The industry argued that the combination would help with continued capacity discipline leading to sustainable “pricing power” (higher fares).

“They [Justice] got this wrong . . . very wrong,” says Rich Parker, partner at Washington law firm O'Melveny & Myers and a noted antitrust specialist. “We intend to have our day in court, and look forward to it.”

The defense strategy, according to three leading antitrust lawyers employed by the airlines, will center on proving how the merger will create benefits for consumers via cost synergies that will, in part, be passed to passengers. The defense also will show that the “new American” will increase services and create a competitive network for corporate travelers (including on connecting services) that currently have to rely on United and Delta. Parker, along with Dechert partner Paul Denis and Jones Day's Joe Sims, says the airlines' defense also will dispel the department's claim that U.S. airlines collude to set ticket prices, and notes that the burden of proof is on the regulator, not them, to show the merger is anti-competitive. “No one should assume the merger is over,” Sims, who represents American, insists.

Levine points out that “the incremental network benefits to the public of this transaction are minimal and the costs to the public of the difference between a three-firm network oligopoly in which all the participants have aligned incentives and a four-firm oligopoly that leaves them misaligned and hence willing to defect from the tacit joint monopoly equilibrium are considerable.”

He quips that “[US Airways CEO Doug] Parker and his crew and the Wall Street guys have been telling us for a year at least that a tighter oligopoly will perfect the industry's “pricing power.” I don't know why we shouldn't believe them!” And: “I understand why tightening the oligopoly should be good for shareholders, managers and organized labor, but I don't understand why anyone should believe that it will be good for the public.”

While the deal is not dead and its fate now lies in the hands of U.S. District Court in Washington, a significant delay beyond the planned third-quarter closing is all but unavoidable. Last week's American Bankruptcy Court hearing in New York became almost a side note in the new process. Judge Sean Lane said he had “lingering doubts” about whether it was appropriate to confirm the plan under the circumstances. And the industry now has reason to review the various scenarios that would result if the merger is ultimately blocked. The conclusions are not comforting, many argue, but here's the thing: The U.S. airline industry has managed to greatly improve its finances. In the second quarter, Delta, US Airways, United, American and Southwest Airlines earned a combined $1.9 billion profit, up from $1.4 billion a year earlier. And most insiders believe that all four legacy carriers will continue to be viable in the future. “Call off the funeral,” says Levine.

Looking at the situation from a global perspective, the U.S. would be the only major market in which four big legacies compete. Low-cost carrier Southwest is another major factor. Latin America has consolidated around three operators, as have Europe, China, the Middle East and Africa (see table). There are also three global alliances. If the Justice Department has its way, the U.S. will be the exception.

“We believe this represents a seminal negative event for the U.S. airline industry and significantly jeopardizes industry capacity discipline,” Jamie Baker, airline analyst at JP Morgan says. “A potential independent [American] will significantly diminish longer-term investor confidence in the sector.” In Baker's view, Justice has “significantly altered its usual M&A analysis to introduce connecting markets and baggage fees into its calculus. As such, it is difficult for us to imagine how both parties could offer any meaningful regulatory appeasement.”

That Justice has approved the Delta/Northwest and United/Continental mergers, but not this one, is because “circumstances are different, the facts changed, they came too late,” Levine says. The government could live with having four network carriers with differing interests, but not with three that are so closely aligned.

That an administration changes its view is not without precedent. In 1998, after years of encouraging major defense contractors to consolidate, the Clinton administration's Justice Department, backed by the Pentagon, successfully filed a suit to block a proposed merger of Lockheed Martin and Northrop Grumman, arguing that the combination of the Defense Department's largest and third-largest suppliers would create “unprecedented anti-competitive concerns.” The suit came just a year after the government had OK'd Boeing's acquisition of McDonnell Douglas.

The future of American is indeed the wild card in the industry. Obviously, if Justice is successful in its opposition, that “would not lead to immediate elimination,” says Hamlin, of American or US Airways, but “it will be increasingly difficult for American to compete with giants [Delta and United].”

Baker points out a key difference: Having merged with US Airways, the new American would not be forced to make any risky capacity moves in order to be on a par with the other two big players. But without it, American “would have to grow (rather than merge) its way to competitive network parity with post-merger Delta and United.” Therefore, “we expect industry capacity to accelerate and longer-term earnings prospects to be diminished.”

In the longer term, according to Morgan Stanley's John Godyn, Delta and United would benefit if the merger did not happen because of “structural advantages that would generate outsize relative returns across cycles.” And US Airways? The Tempe, Ariz.-based airline would be by far the smallest of the Big Four. It currently has one key advantage over the others in that its stage-length-adjusted unit costs are much lower, so it can still make money at fare levels where its competitors cannot. But on the global stage, it would remain a niche player with major gaps in its domestic network, subscale transatlantic presence and no transpacific services.

Justice argues that the proposed merger could be illegal on more than 1,000 city pairs and must be dismantled to stop a clique of national carriers from manipulating services and ticket prices. It cites numerous public comments and internal communications by senior US Airways executives—some dating to 2006—that the regulator says prove competition between U.S. airlines would be weakened if the merger goes forth.

The Justice Department was expected to demand some conditions for the merger, with concessions at US Airways' Reagan Washington National Airport hub the most likely target. But the argument goes far beyond any request for a deal, instead demanding “that [the] defendants [the airlines] be permanently enjoined from and restrained from carrying out the planned merger of US Airways and American or any other transaction that would combine the two companies,” as the deal violates U.S. antitrust law.

The lawsuit's list of 1,044 city pairs “where the merger is presumptively illegal,” stands in stark contrast to the 12 overlapping routes cited by the airlines.

Justice's lawsuit regularly refers to comments made by US Airways management, and uses statements by CEO Parker and President Scott Kirby to illustrate the anti-competitive nature of the merger. The department puts particular weight on Parker's comments that consolidation—which he has championed for years—financially benefits the airline industry. The CEO has said mergers have allowed the U.S. airline industry to control capacity, and that there is an “inextricable link” between reduced supply and higher prices.

William Baer, the assistant attorney general in charge of Justice's antitrust division, says his concern stems in part from the result of earlier mergers that have closed hub operations or focus cities.

Baer acknowledges that this opposition is due, in part, to the limited competition that resulted. He notes, however, that this lawsuit “is fully consistent with what we have done in the past.” In 2000, a proposed merger between US Airways and United was rejected by the regulator, he says, noting that similar rejections were considered by the department in 2007 when US Airways made an unsolicited bid for Delta and in 1998 when Northwest Airlines sought a controlling stake in Continental Airlines.

Since then, however, Justice has approved three substantial mergers (Delta/Northwest, United/Continental and Southwest/AirTran Airways), two of which at the time created the world's largest operator.

Justice would still consider a concessions package, but “the degree of competitive overlap” between US Airways and American leaves little option but to seek a full dismissal of the merger agreement, Baer argues. He says if either airline can prove its future is in jeopardy, the objection could be lifted. But he notes that the two airlines are posting record profits, proof alone that both are viable entities and necessary to maintain competition.

Baer also targets US Airways' apparent fervor for ancillary fees—a major contributor to U.S. airline revenues—and that “post-merger, the new American would likely lead to new fee increases.” He also criticizes US Airways' “tendency” to signal price and fee increases to its competitors, and argues that a “tacit coordination” between the few remaining legacy carriers would only increase if US Airways and American merged.

In 1998, the U.S. Justice Department signaled that consolidation of the U.S. defense industry had gone far enough by moving to block Lockheed Martin's planned acquisition of Northrop Grumman. Tap the icon in the digital edition of AW&ST to read Aviation Week's report on that suit, or go to AviationWeek.com/antitrust

Largest Legacy Carriers in Key Markets(by 2012 revenue passenger kilometers)
North America
United 288.3 billion
Delta 271.5 billion
American 203.3 billion
US Airways 100,4 billion
Europe
Lufthansa 192.7 billion (Lufthansa, Swiss and Austrian)
Air France-KLM 222.7 billion
International Airlines Group (IAG) 186 billion (British Airways, Iberia and Vueling)
Middle East
Emirates 180 billion
Qatar Airways 71.9 billion
Etihad 47.7 billion
(excludes affiliates such as Air Berlin and Air Seychelles)
China
China Southern 135 billion
China Eastern 101.5 billion
Air China 95.7 billion
Latin America
LATAM Group 101.6 billion (LAN Airlines and TAM Brazil)
Gol Airlines 33.9 billion
Avianca 29.9 billion
Africa
South African Airways 22.3 billion
Egyptair 18.2 billion
Ethiopian Airlines
16.9 billion
Source: International Air Transport Association