By now you’ve probably heard that Staples and Office Depot are going to try to get the band back together. Or trying again to put together the band that the FTC wouldn’t let them form back in 1997. Or maybe it’s more like Pierce Brosnan finally getting to play James Bond after his Remington Steel contract foiled the initial attempt.
Anyway, the two office supply retailers are going to give another shot to combining. Just about two years ago I said that the then-proposed combination of Office Max and Office Depot would effectively ask the FTC to reverse the position it took in blocking the first Staples/Office Depot combination. We can now strike the “effectively.”
Let’s quickly review the history. Back in 1997, these two companies tried to combine, arguing, if I may be a bit flip, that big box retailers were more than adequate to keep them competitive. After all, they sell the exact same pens, paper and printer ink as the Mega Low Mart, so how could the merger possibly substantially reduce competition? The FTC said not to fast, pointing to the companies’ own documents and sales data that showed that they consciously offered lower prices when one of the other office supply superstores was present in the market.
In 2013, the other two office supply superstores knocked on the doors of the FTC, this time arguing (again in my flip summary) that the big box stores still mattered, but what mattered even more was the internet. Not only did big internet retailers offer the exact same products, they offered the convenience of not having to leave your office to get them along with especially low prices. This time, the FTC said, “okay.”
Will the FTC be so accommodating this time around? I think the statement of the Commission on the closing of the last investigation is a pretty strong signal that it will, at least as to retail customers.
The signal is really in what the Commission did not say in that statement. In deciding to close its investigation, the Commission said that retail consumers of office supplies would be protected from any anticompetitive outcomes because of the expanded availability of office products from mass merchants and the growth of internet commerce. Notice that the commission did not say that Staples would continue provide an important source of competition for these markets. Rather than seeing Office Max/Office Depot as reducing the numbers of competitors from 3 to 2 with important fringe competition from other types of retailers, the Commission concluded that the market included all of those “fringe” competitors.
Which bring us to the where the real action will likely be for the current investigation: the contract channel.
Not everyone shops for office supplies on an as-needed basis. Some people, and in particular businesses, contract with a supplier to get discounted pricing for anticipated volumes. In its statement, the Commission said that there are “dozens, if not hundreds” of suppliers that compete to serve small and medium sized businesses, but that things are different for “large multi-regional or national customers,” that have needs that can be met by fewer suppliers.
For these customers, the Commission was nonetheless unconcerned about any loss of competition because (1) these customers can protect themselves by multi-sourcing and purchasing directly from manufactures, (2) the parties were not each other’s closest competitor and non-office supply superstore competitors win business bidding against them, and (3) the parties will continue to face competition from non-office supply superstore competitors and, perhaps importantly, Staples.
And therein lies the rub. Is #2 true for the current deal now that there are only two office supply superstores? Is non-office supply super store competition enough on its own to anchor #3?
With no data in hand, I can’t really do anything but guess. My guess is the answer to both questions is yes. Again, the Commission statement is instructive. Importantly, it said that non-office supply superstore competitors were “growing in numbers and strength.” Assuming that the parties can show that trend has continued, the FTC may also let this deal pass.