UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, a Plaintiff, ; v ; Civil Case No. 17-2511 (RJL) AT&T INC., et al., ; pe } FILED JUN 12 2018 te 7 Clerk, U.S. District & Bankre MEMORANDUMOPINION ds fori Detett Coloma (June, 18), If there ever were an antitrust case where the parties had a dramatically different assessment of the current state of the relevant market and a fundamentally different vision of its future development, this is the one. Small wonder it had to go to trial ! On November 20, 2017, the U.S, Department of Justice’s Antitrust Division brought this suit, on behalf of the United States of America (“the Government” or “the plaintiff"), to block the merger of AT&T Inc. (“AT&T”) and Time Warner Ine, (“Time Warmer”) as a violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. The Government claims, in essence, that permitting AT&T to acquire Time Wamer is likely to substantially lessen competition in the video programming and distribution market nationwide by enabling AT&T to use Time Wamer’s “must have” television content to either raise its rivals’ video programming costs or, by way of a “blackout,” drive those same rivals’ customers to its subsidiary, DirecTV. Thus, according to the Government, consumers nationwide will be harmed by increased prices for access to Turner networks, notwithstanding theGovernment’s concession that this vertical merger would result in hundreds of millions of dollars in annual cost savings to AT&T’s customers and notwithstanding the fact that (unlike in “horizontal” mergers) no competitor will be eliminated by the mergers proposed vertical integration Not surprisingly, the defendants, AT&T, Time Warner, and DirecTV, strongly disagree. Their vision couldn't be more different. The video programming and distribution market, they point out, has been, and is, in the middle of a revolution where high-speed internet access has facilitated a “veritable explosion” of new, innovative video content and advertising offerings over the past five years. Trial Tr. (“Tr.") 1397:1-4 (Montemagno (Charter)). Vertically integrated entities like Netflix, Hulu, and Amazon have achieved remarkable success in creating and providing affordable, on-demand video content directly to viewers over the internet. Meanwhile, web giants Facebook and Google have developed new ways to use data to create effective ~ and lucrative ~ digital advertisements tailored to the individual consumer, As a result of these “tectonic changes” brought on by the proliferation of high-speed internet access, video programmers such as Time Warner and video distributors such as ATAT find themselves facing two stark realities: declining video subscriptions and flatlining television advertising revenues. /d. at 3079:18 (Bewkes (Time Warner)). Indeed, cost-conscious consumers increasingly choose to “cut” or “shave” the cord, abandoning their traditional cable- or satellite- TV packages for cheaper content alternatives available over the internet. At the same time, Facebook's and Google's dominant digital advertising platforms have surpassed television advertising in revenue. Watching vertically integrated, 2data-informed entities thrive as television subscriptions and advertising revenues declined, AT&T and Time Warner concluded that cach had a problem that the other could solve: Time Warner could provide AT&T with the abi ity to experiment with and develop innovative video content and advertising offerings for AT&T’s many video and wireless customers. and AT&T could afford Time Warner access to customer relationships and valuable data about its programming. Together, AT&T and Time Warner concluded that both companies could stop “chasing taillights” and catch up with the competition, 2/16/18 Hr'g Tr. 34:16 [Dkt # 67]. Those were the circumstances that drove AT&T, a distributor of content, and Time Warner, a content creator and programmer, to announce their historic $108 billion merger in October 2016 (the “proposed merger” or “challenged merger”). Those are the circumstances that cause them to claim today that their merger will increase not only innovation, but competition in this marketplace for years to come. Section 7 of the Clayton Act assigns this Court the “uncertain task” of weighing the parties’ competing visions of the future of the relevant market and the challenged merger’s place within it, United States v, Baker Hughes Inc., 908 F.2d 981, 991 (D.C. Cir. 1990). Nothing less than a comprehensive inquiry into future competitive conditions in that market is expected. And the Government has the burden of proof to demonstrate that the merger is likely to lessen competition substantially in that uncertain future. Since announcing the transaction in late October 2016, defendants have delayed closing on the merger agreement for about 18 months as a result of the Government's investigation and suit. The deal is now set to expire if not consummated on or before June 21, 2018 —a turn of events that would require AT&T to pay Time Warmer a “break-up fee” 3of $500 million. The parties have engaged in a highly accelerated discovery schedule to prepare themselves to try this case in March and April of this year. The tial itself lasted nearly six weeks. Both sides put on a case-in-chief and the Government put on a rebuttal case as well. At the conclusion of the trial, | advised the parties I would issue a ruling, if not an opinion, no later than June 12, 2018 so that the losing side would have the agreed- upon time remaining to pursue its appellate rights before the merger or the $500 million break-up fee went into effect, The following is the Court's Opinion. Initially, I provide context for this suit by reviewing the background of the video programming and distribution industry, the proposed merger, and the procedural history of this case, Thereafter, I discuss the legal standards governing a suit under Section 7 of the Clayton Act, emphasizing in particular the considerations at play in evaluating vertical mergers. With that in place, I next analyze each of the Government's three theories of harm to competition, balancing, as appropriate, the conceded proconsumer benefits of the merger with the consumer harms alleged and the evidence offered to support them. Ultimately, I conclude that the Government has failed to meet its burden to establish that the proposed “transaction is likely to lessen competition substantially.” Baker Hughes, 908 F.2d at 985, As such, based on that conclusion, and for all the reasons set forth in greater detail in this Opinion, the Court DENIES the Government’s request to enjoin the proposed merger.TABLE OF CONTENTS BACKGROUND 7 The Video Programming and Distribution Industry 7 A. Video Programing and Distribution .....00ssssusnnnnnnnnnnnnnnnss 8 1, Programmers. 8 2. Distributors — u 3. Affiliate Negotiations and “Blackouts” . = ea B. Industry Trends. ee 1. Rise and Innovation of Over-the-Top, Vertically Integrated Video Content Services... 18 2. Declining MVPD Subscriptions Resulting from an Increasingly Competitive Industry Tandecepe eee eens Seen ——a 21 G1 Shift Toward Targeted: Digital Advertising ee =) I. The Parties and Proposed Merger ee A. AT&T 28 Be Vite W arrict eee eee = 0 1, Turner Networks 31 2. HBO 34 CC. The Proposed Merger. 36 IIL Procedural History... 40 A. The Investigation ...susssmsnsnnnnninnnninnnnnnnnnnnnnninnnnnnnninnnne 40 B. Pretrial Proceedings. 40 The Complaint te ee 40 2. Tumer's Arbitration Commitment......sensensenssensensessen 4 3. Pre-Discovery Timeline... 2 4. Discovery 2 5. Discovery Disputes ...cnnnnnnnnnnnnnin sess 44 6. Evidentiary Disputes : = = 46 C. The Trial 47 IV. Legal Standard.. sssnnnninininunsnnnnnnnnnnnnnnn 50 A, The Clayton Act B. Baker Hughes Burden Shifting Framework ess C. Antitrust Analysis of Vertical Mergers... sesntntnness 38ANALYSIS. 59 1, Market Definition, . oo osnsene 61 11. Conceded Consumer Benefits of Proposed Merger o ea 66 Ill The Government Has Failed to Meet Its Burden to Show That the Proposed Merger Is Likely to Substantially Lessen Competition by Inereasing Turners Bargaining Leverage in Affiliate Negotiations .....sssssctsessesseetne eects sous 68 A. Background of Increased-Leverage Theory of Harm a 2 B. The Government's So-Called “Real-World Objective Evidence” Is Insufficient to Support Its Increased-Leverage Theory Of Ham ....onnninnnnntnnnessnnsnnnsnns T4 1. Evidence Regarding the Popularity of Turner Content Is of Limited Probative Value in Evaluating the Contention That Turner Will Gain Increased Leverage Due to the Proposed Merger. . oe seen TS 2. Defendants’ Own Statements and Documents Provide Little Support for the Contention That Turner Will Gain Increased Leverage Due to the Proposed Merger. 719 3. Third-Party Competitor Witness Testimony Provides Little Support for the Contention ‘That Turner Will Gain Increased Leverage Due to the Proposed Metget.n.-rnnnson 91 4. Real-World Evidence Indicating That Prior Vertical Integration of Programmers and Distributors Has Not Affected Affiliate Fee Negotiations Undermines the Government's Increased-Leverage Theory of Harm. seccessesesnesee .. 99 CC. The Governments Expert Testimony Is Also Insufficient to Support Its Increased- Leverage Theory of Harm . on 109 1. The Evidence Is Insufficient to Support Professor Shapiro’s Conclusion That the Merger Will Increase Turner's Bargaining Leverage and, in Turn, Affiliate Fees ...cununen HT 2. The Evidence Is Insufficient to Support the Inputs and Assumptions Incorporated into Professor Shapiro's Bargaining Model. . 18 IV, The Government Has Failed to Meet Its Burden to Show That the Proposed Merger Is Likely to Substantially Lessen Competition on the Theory That AT&T Will Act 1o Harm Virtual MVPDS Through Its Ownership of Time Warner Content ....:ssseciessssiseineisine 150 V. The Government Has Failed to Meet Its Burden to Show That the Proposed Merger Is. Likely to Substantially Lessen Competition on the Theory That AT&T Will Restrict Distributors’ Use of HBO as a Promotional Tool oe 165 CONCLUSION... see 170BACKGROUND 1. The Video Programming and Distribution Industry! The structure of the video programming and distribution industry generally resembles the “three-stage chain of production comprised of manufacturers, wholesalers, and retailers that typifies the distribution of many, if not most, physical goods in the U.S. economy.” Christopher S. Yoo, Vertical Integration and Media Regulation in the New Economy, 19 Yale J. Reg. 171,220 (2002). Here, that three-stage chain of production and distribution involves “content creation, content aggregation, and content distribution.” Proposed Findings of Fact of the United States (“Gov't PFOF”) § 8 [Dkt. # 128].2 Television content begins at the manufacturing level. Although video programming is often created by studios (such as Time Warner's Warner Bros.), some networks or distributors “produce content for themselves” or, in the case of live sporting events, license the rights to broadcast the events from the various sports leagues. See Tr. 80:12-16 (Fenwick (Cox). At the second level, programmers (such as Time Warner’s Turner or Home Box Office (“HBO”)) aggregate content into a network or network group and then For consistency throughout this Opinion, I will use the phrase “video programming and On that score, defendants argue that “even taken at face value, the Government's projected price effects do not state a claim under the Clayton Act.” Defs.’ PCOL 159 (capitalization altered); see also id{4 31-33. In particular, defendants point out that the miniscule per-consumer price increases of approximately 27-cents per month relied on by the Government would not prevent AT&T's rival distributors from competing in the marketplace or otherwise “impair(] their ability to discipline” AT&T's 70briefly review the basics of affiliate negotiations and the Government's increased-leverage theory of harm. With that background established, I will examine the evidence put forward by the Government to support its argument that the challenged merger would likely increase Turer’s bargaining leverage with distributors and thereby enable it to secure the greater affiliate fees than it could without the merger. Ultimately, as I will expl Government's proof at trial falls far short of establishing the validity of its increa leverage theory. A. Background of Increased-Leverage Theory of Harm As previously discussed, the terms under which distributors may license and display programmers’ content are set through a “very tough” series of al ate negotiations. ‘Tr 1023:2 (Breland (Turner); see supra pp. 14-18. As with any type of bargaining, each party to an affiliate negotiation attempts to take advantage of its points of leverage, and “reaching a deal in the end can come down to a battle of the competing bargaining leverages.” Tr. 1025:20-22 (Breland (Turner): Gov't PFOF § 154. In the event an affiliate negotiation is unsuccessful, the distributor will lose the rights to display the programmer’s content to its prices: indeed, they claim that competition would be promoted by the challenged merger’s conceded vertical integration effect of lowering AT&T's prices to its projected consumers. Ld, $f] 31-32: of Comcast Cable Comms., LLC v. FCC, 717 F.3d 982, 990 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“Vertical integration and vertical contracts become potentially problematic only when a firm has market power in the relevant market.”) For the reasons given by defendants, the Court harbors serious doubts that the Government's proffered affiliate fee increases to AT&T's rivals or the resulting 27-cent per-month subscriber cost increases would, if proven, constitute a “substantial lessening of competition” for purposes of Section 7. 15 U.S.C. §18, As just noted, however, | need not rest this opinion on that legal conclusion. That is because, for all of the reasons provided in the section that follows, the Government has failed to carry its burden to put forward adequate evidence to show that there are likely to be any price increases (much less price increases that outweigh the conceded EDM benefits to consumers) either to AT&T’ rival distributors or their subscribers under its increased-leverage theory. 7customers, Such a situation is known in the industry as a programming “blackout,” or “going dark.” Tr. 129:4-9 (Fenwick (Cox)) Blackouts have significant, if not “catastrophic,” negative consequences for programmers — in the form of lost advertising and affiliate fee revenues. Jd. at 1128:7-12 (Breland (Turner); Defs." PFOF {4 76-77. Distributors, for their part, may lose subscribers. See generally, e.g., Tr. 2197:4-2198:2 (Shapiro). In “almost every negotiation,” therefore, programmers and distributors threaten blackouts in an attempt to gain concessions. /d. at 1026:17-1027:3 (Breland (Turmer)); of. id. at 367:1-22, 376:22- 377:11 (Schlichting (DISH)). Given that blackouts are negative events for both programmers and distributors, however, deals between programmers and distributors are invariably struck in order to avoid long-term blackouts. See id, at 138:13-15 (Fenwick (Cox)); id, at 1027:4-7 (Breland (Turmer)); id, at 1359:14-15 (Montemagno (Charter)); id. at 3124:4-7 (Bewkes (Time Warner)). Indeed, when it comes to Turner, the record shows that there has never been a long-term blackout of the Turner networks. See id. at 2357:12- 14 (Shapiro) (“Q: But to be sure there’s never been a long-term blackout of Turner, right? A: No. .”); Defs.’ PFOF § 94, That fact is by no means lost on either side. That background brings us to the Government’s inereased-leverage theory. Notably, under that theory, the Government does nof allege that a post-merger Turner would be incentivized to start actually engaging in long-term blackouts with distributors. That is so, as Professor Shapiro concedes, because withholding Turner content would not be “profitable” to the merged entity given the attendant losses in significant advertising and affiliate fee revenues. See Tr. 2293:9-17 (Shapiro). In other words, and in contrast to 72a prevalent theory of vertical merger antitrust harm, Turner will not “foreclose” downstream distributors from accessing Turner content. See id. at 2218:15-16 (“This is not a foreclosure-withholding story.”); of Brown Shoe, 370 U.S. at 323-24 (stating that “[t)he primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a clog on competition” (internal quotation marks omitted) Instead, the Government's increased-leverage theory of harm posits that Turner's bargaining position in affiliate negotiations would improve after the merger due to its That is so, the Government argues, because Turner and its distributor counterparties would recognize that, should Turner fail to strike a deal and engage in a long-term blackout with a distributor, Turner would no longer face the mere downside of losing affiliate fees and advertising revenues. See, e.g., Gov't Post-Tr. Br. 1- 2. Rather, some of those losses would be offset, according to the Government, by new benefits to AT&T’s video distribution companies via the following chain of events: 1) some of the rival distributor's customers would depart or fail to join the distributor due to the missing Turner content; 2) some portion of those lost customers would choose to sign up with AT&T's video distributors (which would have Turner); and 3) AT&T would profit from those gained subscribers. See generally Tr. 2197:15-2198:12 (Shapiro). As a result, the Government predicts that Turner’s downside position in the event of a blackout would improve as a result of the proposed merger. That improved downside position, according to the Government, would in turn enable Turner to demand higher prices for its content in 3post-merger affiliate fee negotiations with distributors — price increases that would ultimately be passed on to consumers. See Compl. § 38. Attrial, the Government relied on two primary categories of evidence to support its increased-leverage theory of harm. First, it offered s alled “real-world objective evidence” ~ namely, statements contained within defendants’ prior regulatory filings and internal business documents as well as testimony from third-party competitor witnesses: Gov't PCOL 21. Second, the Government called an expert, Professor Carl Shapiro, to testify about its increased-leverage theory, which is based on an economic theory of bargaining known as the Nash bargaining theory, and to estimate the consumer harm associated with the increased-leverage theory. Gov't PFOF § 201. For the following reasons, neither category of evidence was effective in proving the Government's increased- leverage theory. Accordingly, as to this theory, the Government has failed to meet its burden of proof to show that the merger is likely to result in a substantial lessening of competition. . The Government's So-Called “Real-World Objective Evidence” Is Insufficient to Support Its Increased-Leverage Theory of Harm To support its increased-leverage theory of harm, the Government first points to various pieces of the so-called “real-world objective evidence” it offered at trial. Gov't PCOL 21. That evidence primarily consisted of defendants’ ordinary course-of-business documents and excerpts of regulatory filings submitted by defendants in prior administrative proceedings, as well as the testimony of third-party witnesses from AT&T's al distribution companies. Of particular importance here, the Government's so-called 74real-world evidence was directed at explaining and establishing two main concepts. First. the Government sought to establish the importance of Turner content to distributors and the resulting leverage Turner enjoys in affiliate fee negotiations, Second, the Government relied on this so-called “real-world objective evidence” to substantiate its prediction that Turmer’s leverage with distributors would increase as a result of Turner’s post-merger relationship with AT&T. Neither, however, provided persuasive support for the Government's increased-leverage theory of harm. How so? 1. Evidence Regarding the Popularity of Turner Content Is of Limited Probative Value in Evaluating the Contention That Turner Will Gai Increased Leverage Due to the Proposed Merger At trial, much time was spent debating the “must-have” status of Turner's programming content. According to the Government, distributors literally “must have” Turner’s content in order “to compete effectively” in the video distribution industry. Gov't Post-Tr. Br. 4; see also id. at 6 (“Distributors don’t just want this specific input to compete effectively, they truly need it.”); Gov't PFOF 23 (similar). Defendants countered that the term “must have” is simply a marketing phrase used to mean “popular” and, similarly, that ‘Turner content is not actually necessary to allow distributors to operate their businesses successfully. See Defs.’ PFOF 179. Based on the evidence, | agree with defendants that Turner’s content is not literally “must have” in the sense that distributors cannot effectively compete without it. The evidence showed that distributors have successfully operated, and continue to operate. without the Turner networks or similar programming. Cf Tr. 351:5-25 (Schlichting 15(DISH)) (discussing fact that DISH’s virtual MVPD, Sling, offers packages without broadcast stations and CBS); PX144-121 (listing “[plast [n]etwork [d]rops” by ributors). Indeed, Stefan Bewley. a consultant who generated a slide deck with recommendations for Charter’s use in evaluating its relationships with programmers. indicated that “Charter would be better off and would save a lot of money [by] canceling Turmer.” Tr. 1336:10-12 (Bewley (Altman Vilandrie)), Sling President. Warren Schlichting acknowledged DISH founder and chairman Charlie Ergen made similar statements to the investment community. See, e.g.. id. at 365:17-366:1 (Schlichting (DISH) (conceding that Ergen stated in investor call that a Turner blackout would be “slightly cash positive for us from a cash-flow perspective”). I therefore give little credit to blanket statements by third-party competitor witnesses indicating that the entire “viability of [their] video model” could depend on whether they offer Turner programming. /d. at 128:21 (Fenwick (Cox)): see also id. at 697:2-19 (Hinson (Cox)) (claiming that, without Turner, Cox would lack “the ability to compete” and that their customers would “go somewhere else”). Such statements were largely unaccompanied by any sort of factual analyses or. worse, contradicted by real-world examples from the witnesses themselves. See, e.g., id. at 128:22-129:20 (Fenwick (Cox)) (neither she nor others at Cox had done analysis of potential subscriber losses in Turner blackout); id. at 2947:1-13 (Holanda (RCN)) (“Q: And so today, you're not offering this Court any empirical data or any real-world evidence of subscriber losses if RCN didn’t have Turner, right? A: No, not our company.”). Compare id. at 242:14-15, 352:5-7 (Schlichting (DISH)) (“[I]f you don’t have March Madness” games. half of which are 76carried by Turner, “you're not in the pay-TV business.”), and id, at 245:14-15 (“Q: How about CNN, why is CNN must have? A: Well, imagine coming around to midterm elections without CNN, right.”), and id. at 242:16-243:1 (“ABC, NBC, CBS, Fox and Time Warner are the five groups that you, you just, it’s very hard to have a pay-TV service without them.”), with id. at 35: -19 (conceding that DISH’s Sling does not carry CB S, which offers the other half of the March Madness games), and id. at 360:18-24, 388:10-389:5 (acknowledging that DISH went dark with CNN at time of 2014 midterm’ elections and suffered only negligible subscriber loss), and id, at 351:11-21 (admitting that Sling Orange package lacks all of the “broadcast stations [and] CBS”).24 Nor does those witnesses’ (or, for that matter, defendants’) use of the term “must have" to describe Turner content change things, Indeed, the evidence indicated that the term “must have” is a marketing phrase used by virtually every programmer to suggest that its content is popular with viewers. See, e.g.. id. at $49:19-20 (Martin (Turner)) (“Must have’ is another way of saying, we have popular programming.”); id, at 899:13-16 (Rigdon (Comeast)) (agreeing that “must have is just a term of art that means something is popular”); id, at 1092:18-24 (Breland (Turner)) (“[M]ust have means it’s popular. . . . I The “must have” status of Turner content also varies based on whether the content is available for viewing through other means, such as over the internet. Former Cable ONE negotiator Randy Sejen testified, for example, that subscriber losses from a blackout of Turner's live baseball content were mitigated by the fact that “consumers were able to wire around” the blackout by “accessing mlb.com if they needed to see a particular playoff game.” Tr. 2117:21-2118:20 (Sejen (CABLE ONE)). Along those same lines, Sejen testified that the online availability of March Madness basketball games could potentially “address the sort of must-have nature” of that content. See id. at 2121:11-16, 2123:1-5. I received similar evidence indicating that the availability of HBO's content through online, direct-to-consumer platforms has lowered the value of HBO programming and thus its leverage — in the eyes of distributors. See. e.g, DX709 71don’t in a literal sense mean that | must have this content or I can’t be successful.”); id. at 2130:23-2131:6 (Sejen (Cable ONE)) (agreeing that he would “expect to hear” all programmers pitch their content as “must-have” and that he would “kind of take that with a grain of salt”). That said, 1 do nonetheless accept the Government's contention that Turner has popular content ~ especially live sporting events and live news — and, as a result, enjoys bargaining leverage with distributors. See Gov't PFOF $f 70-102 (summarizing evidence regarding Turner's importance to distributors); id. §¥ 103-177 (summarizing evidence supporting proposition that “Turner's valuable content gives it leverage in negotiations” with distributors). Importantly, however, accepting that straightforward proposition ~ ie., that popular programmers such as Turner are able to demand more for their content than less popular programmers — does not prove that the challenged merger would harm competition pursuant to the Government's increased-leverage theory of harm. To prove its increased-leverage theory, in other words, it is not sufficient for the Government to put forward evidence that Turner has important content and thus bargaining leverage ~ that fact is true today, pre-merger. Rather, the Government's increased-leverage theory posits that Turner's pre-merger bargaining leverage would materially increase as a result of its post-merger relationship with AT&T and that, as a result, distributors would cede greater affiliate fees than they would absent the merger. To support that contention at trial, the Government primarily relied on defendants” own statements and documents as well as testimony of third-party competitor witnesses, most (but not all) of whom expressed concern regarding the challenged merger’s potential 8effects on their businesses. Neither category of evidence, however, is persuasive in proving that Tumer’s post-merger negotiating position would materially increase based on its ownership by AT&T. 2. Defendants’ Own Statements and Documents Provide Little Support for the Contention That Turner Will Gain Increased Leverage Due to the Proposed Merger According to the Government, defendants’ own prior statements and ordinary course business documents “recognize that vertical integration poses a threat to competition” and, thus, provide convincing support for the Government's bargaining leverage claim, See Gov't PFOF §# 47-58. The Government points to statements made by defendants in the context of prior regulatory proceedings, and statements contained in internal documents such as slide decks and emails created by various individuals within the defendant companies. Neither category, however, was of any particular probative value, How so? Asa general matter, the Government is undoubtedly correct that “ordinary course- of-business documents, including those generated by the defendants ” can be probative of whether a proposed merger is likely to result in competitive harm, Gov't PCOL § 49, But as with any other piece of documentary evidence, assessing the probative value of defendants’ own documents and statements requires an examination of the context, circumstances, and foundation of the proffered evidence. As such, with few exceptions, the Court denied the Government's requests to admit into evidence and cite in post-trial briefing a number of company documents for which there was no accompanying 79background or foundation testimony. See supra pp. 46-47 & nn. 11-13, With the benefit of foundational testimony, I have considered all of the documentary and testimonial jence from defendants’ files and witnesses upon which the Government relied at trial Having done so, I nonetheless conclude that the proffered statements and documents admitted are of such marginal probative value that they cannot bear the weight the Government seeks to place on them.” First, the Government argues that defendants” statements “made in external filings with governmental authorities” are evidence of defendants’ “understanding of the anticompetitive effects that result from this transaction.” Gov't PCOL 452. The statements in particular upon which the Government relies were made, either in comments or supporting expert reports filed by AT&T or DirecTV, in the course of the following F proceedings: 1) the 2010 review of the Comcast-NBCU merger, see PX1 (DirecTV); PX441 (DirecTV); 2) the 2012 proceeding to determine, inter alia, whether to allow one Before proceeding further, the Court notes a bit of confusion in the Government's position about the role of defendants’ alleged “anticompetitive intent” in assessing the likely harms associated with the challenged merger. Gov't PCOL {| $1. In opening arguments, counsel for the Government stated, in reference to the predictive exercised called for by Section 7, that “courts don’t focus on intent. What they focus on is effects, effects in the market.” Tr, 10:15-16, But the Government's post-trial brief cites cases for the proposition that “[e]vidence of anticompetitive intent can also form the basis of a court’s prediction of harm,” while at the same time noting that “absence of evidence demonstrating anticompetitive intent suggests nothing.” Gov't PCOL $1 & n.12. ‘The Court need not toil to reconcile those positions or parse the state of our Circuit's current case law on the issue, Compare Whole Foods Mk, $48 F.3d at 1047 (Tatel, J., concurring in the judgment) (°[T]he Supreme Court has clearly said that “evidence indicating the purpose of the merging parties, where available, is an aid in predicting the probable future conduct of the parties and thus the probable effects of the merger.” (emphasis and internal quotation marks omitted) (quoting Brown Shoe, 370 U.S. at 329 n.48)), with id. at 1057 (Kavanaugh, J., dissenting) (“[I]ntent is not an element of a § 7 claim, ...” (citing 4.4. Poultry Farms. Inc. v. Rose Acre Farms, Inc., 88| F.2d 1396, 1402 (7th Cir. 1989)) (“Firms need not like their competitors; they need not cheer them on to success; a desire to extinguish one’s rivals is entirely consistent with, often is the motive behind, competition.”)). That is because, as discussed below, here there is nothing akin to the direct, anticompetitive intent evidence of the other cases cited by the Government in its post-trial brief. 80of the FCC’s program access rules to sunset, see PX2 (AT&T); PX442 (AT&T); PX443 (DirecTV); 3) the 2014 annual video competition proceeding, see PX444 (AT&T); and 4) the 2014 review of the AT&T-DirecTV merger, see PX467 (AT&T and DirecTV). Not surprisingly, the Government contends that these prior statements show that defendants have previously recognized the validity of applying its increased-leverage theory to that said: so what? affiliate fee negotiations. See, e.g., Gov't Post-Tr. Br. 2. But Although I agree that a few of the proffered statements might be somewhat probative of the Government’s increased-leverage theory. that limited probative value cannot, and does not, overcome the numerous insufficiencies with the Government's case discussed below, In particular, in examining defendants’ prior regulatory filing statements, | am mindful of the considerations discussed in the context of the third-party competitor testimony. See infra pp. 91-99. When AT&T and DirecTV made many of the proffered regulatory filings, they acted as competitors to (or customers of) distributors whose % Just prior to the close of evidence, when the Government moved the Court to take judicial notice of certain enumerated regulatory filings, I noted that the materials filled a notebook that is about “4 inches thick of paper.” Tr. 3942:4-5. Given the complex analyses and arguments contained within the voluminous filings, | noted that the Government was “at an absolute minimum . .. going to have to isolate and identify as to each document which statement or statements” it thought were relevant to the case for purposes of clearing Federal Rule of Evidence (“FRE”) 403. {d. at 3943:23-3944:3. In response, counsel for the Government stated that the “memorandum that | handed up isolates and lists the specific statements, and I'm happy to limit to those that are identified on page 3 and 4.” Id. at 3945:11-13. In its post-trial papers, the Government nonetheless appears to argue that the entire expert reports appended to the prior regulatory filings are admissible under FRE 801(d)(2) as adoptions of defendants. See Gov't PCOL § $4 & n.13. That is largely beside the point, however. That is because the Court declines to admit those portions of the proffered expert reports and filings not “identified on page 3 and 4” of the Government's motion under FRE 403, Jd. at 3945:11-13. In my judgment, evaluating the complicated, fact-specific arguments and analyses contained with those filings and reports would essentially require a trial within a trial (recall that not even the expert reports in this case were offered into evidence by the parties) the result of which would produce evidence that is only marginally probative for all of the reasons discussed below. 81competiti positions would be affected by FCC review, For that reason alone, | am hesitant to assign any significant evidentiary value to those prior regulatory filings. inally, with respect to this particular categories of statements, I particularly decline to place much stock in the statements related to the sunsetting of the FCC’s ban on exclusive contracting between certain programmers and distributors. See, e.g, PX2. PX442, Many of those statements relate to the issue of withholding content ~ something the Government’s own expert concedes would not occur as a result of the proposed merger Compare PX2-4 (“[VJertically integrated programmers continue to have the incentive and ability to use (and indeed have used whenever and wherever they can) that control as a weapon to hinder competition to their down-stream cable affiliates by withholding popular programming from competing MVPDs.”) (emphasis added), with Tr. 2218:13-17 (Shapiro) (I’m not saying that after the merger, Turner will deny its content to the other distributors, This is not a foreclosure-withholding story.”) (emphasis added). Generic statements about “mushroomfing]” bargaining power of all programmers are similarly unhelpful to evaluating the Government's particular claims in this case. PX444-3 to -4 That brings us to select statements made by DirecTV or AT&T that relate to vertically integrated programmers’ ability to raise content prices and the use of the Nash bargaining model to estimate increased affiliate fees. See, e.g., PX1-17, -83 ("[VJertical integration of programming and distribution can, if left unchecked, give the integrated entity the incentive and ability to gain an unfair advantage over its rivals.”); PX441-5 (noting “voluminous economic and other evidence that the proposed transaction would enable Comeast to raise the prices paid by its MVPD rivals for NBCU programming”): 82PX443-79 (“[VJertically integrated MVPDs have an incentive to charge higher license fees for programming that is particularly effective in gaining MVPD subscribers than do non- vertically integrated MVPDs.”). According to the Government, those statements show that defendants recognize the validity of applying this bargaining model to estimate the impact of AT&T and Time Warner's vertical integration on affiliate fee negotiations. Please ! Generic statements that vertical integration “can” allow the integrated entity to gain an “unfair advantage over its rivals,” PX1-17 (emphasis added), do not come close to answering the question before the Court in relation to the Government's increased-leverage theory: whether the Government has carried its Section 7 burden to show, through proof, at trial, that Time Warner will gain increased bargaining leverage in affiliate negotiations on account of the proposed merger and, if so, whether that increased bargaining leverage would result in increased distributor or consumer costs that would constitute a substantial lessening of competition under Section 7. Cf. In re Applications of Comcast Corp., 26 FCC Red. 4238 § 24 (2011) (noting differences in FCC’s “public interest” review and DOI's burden for “block{ing] a transaction” under Section 7). Similarly, the arguments that the Comcast-NBCU merger would harm distributors or consumers (as well the projections of harm) were, of course, informed by the state of the market at the time of the proceeding and the particular inputs to the models presented to the FCC. See, e.g.. id. app B (Technical Appendix) (setting out various formulae and inputs used to model potential economic harm). Given all that, defendants’ specific predictions regarding the ability of a merged Comeast-NBCU to leverage price increases by threatening to withhold the particular programming at issue is not particularly probative of whether a merged AT&T- 83Time Warner could do the same with its programming in today’s more competitive marketplace. Compare id. § 41 (“We do not determine at this time whether online video competes with MVPD services.”), with Gov't PFOF $f 14-18 (detailing role of virtual MVPDs in “distributfing] linear channels and on demand content to subscribers over the internet”). Moreover, as discussed in more detail below, defendants’ expert Professor Carlton concluded in an econometric analysis of content pricing following the Comeast- NBCU merger that, contrary to the predictions offered by competitors in the regulatory filings, the merger did not cause content prices to increase. See infra pp. 100-105, That said, the Court agrees with the Government that the fact that defendants previously submitted expert reports or commentary sponsoring the use of the Nash bargaining model in the context of affiliate fee negotiations counts as a mark (albeit a faint one) against defendants’ attempts to disavow the applicability of the Nash bargaining theory in this case. Unfortunately for the Government, however, my conclusion that the Government has failed to provide sufficient evidentiary support to show the Nash bargaining theory accurately reflects post-merger affiliate negotiations or the proffered bargaining model in this case does not turn on defendants’ protestations that the theory is “ridiculous,” or “absurd.” Gov't PFOF {47 (quoting Tr. 50:18 (Defs.” “preposterous,” Opening); id. at 3119:19-24 (Bewkes (Time Wamer)); id. at 3430:1-11 (Stephenson (AT&T)). Itrests instead on my evaluation of the shortcomings in the proffered third-party competitor testimony, see infra pp. 91-99: the testimony about the complex nature of these negotiations and the low likelihood of a long-term Turner blackout, see infra pp. 14-18, 115-117 & nn.34-36; and the fact that real-world pricing data and the experiences of 84individuals who have negotiated on behalf of vertically integrated entities all fail to support the Government's increased-leverage theory, see infra pp. 99-108. Therefore, even assigning some probative weight to the statements made by defendants in prior regulatory proceedings, those statements do not come close to providing a sufficient evidentiary basis to prove the viability of the Government’s increased-leverage theory in this case.?” Second, to prove its increased-leverage theory, the Government relies upon random statements from defendants’ “ordinary course” bus ess documents, including employees” ® The Government takes its regulatory filings argument one step further in its post-trial briefing, asserting, for the first time, that defendants’ prior regulatory statements should result in them being Judicially estopped from denying basic predicates of the increased-leverage theory of harm. Gov't PCOL {9 74-75. To say the least, that argument is a stretch. As the Supreme Court has explained. the “equitable doctrine” of judicial estoppel may be “invoked by a court at its discretion” to guard against a party's “improper use of judicial machinery” to gain an'“unfair advantage.” New Hampshire v. Maine, 332 US. 742, 750-51 (2001) (internal quotation marks omitted). To appropriately apply judicial estoppel against a party, the “party’s later position must be ‘clearly inconsistent” with its earlier position”; courts also consider whether the party has “succeeded in persuading a court to accept that party’s earlier position” or would “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. (internal quotation marks omitted), Applying those factors, | easily conclude that estoppel is not appropriate here. To start, the cited prior regulatory comments are not “clearly inconsistent” with defendants’ current positions: predicting that a different vertical transaction, made at an earlier time period and in a less-competitive market, will shift bargaining outcomes is ot inconsistent with arguing that the Government has failed to earry its burden of proof to show at trial that a different transaction, proposed in the context of an even more competitive market, is likely to similarly shift outcomes (much less substantially lessen competition). Maine, $32 US at 750; Jankovic v. Int'l Crisis Grp., 822 F.3d 576, $86 (D.C. Cir. 2016) (declining to apply estoppel when party’s position was not inconsistent). Although that consideration alone is fatal to the Government's estoppel argument, the Court further notes that the equities also weigh against applying estoppel here. The Government investigated the proposed merger for approximately one year before filing its suit. Disputes regarding the applicability of an increased-leverage theory as applied to the transaction have been front and center in the litigation, and were fully aired at trial. Given all that, Iam hard pressed to understand how the Government would suffer an “unfair detriment” if defendants are not estopped; if anything, it would seem manifestly unfair to defendants to accept the Government's post-trial estoppel argument that much of the trial evidence can be ignored and indeed substituted with decades-old regulatory filings. Thus, even assuming that estoppel can be applied based on statements contained within third-party regulatory comments to prior administrative proceedings, but see Abjew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 899-900 (D.C. Cir. 2015) (“[T he rule of judicial estoppel ‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”” (emphasis added) (quoting Maine, 532 U.S. at 749)), the Court declines the Government's last- minute invitation to estop defendants here, 85emails and internal slide decks. Indeed, the Government even featured many such statements (or, more accurately, snippets of such statements) in its Complaint and pre-trial filings. However, as became clear at trial, when live witnesses take the stand a trial by slide deck leaves much to be desired ! Exemplary of this problem is a series of Government exhibits containing emails and Grafts of slide decks generated prior to a merger integration meeting in 2017. See PX31; PX184; PX189; PX363. The Government has emphasized statements excerpted from those slide decks, contending before, during, and after trial that they highlight AT&T's “core belief” that the merger would help it preserve the role of “[t]raditional Pay-TV™ as a “cash cow business to AT&T for many years to come” by ensuring “stability through the slow. structural decline of the industry.” PX363-12 to -13; see, eg. Compl. § 3 (“As AT&T/DirecTV’s strategic merger documents state, after the merger, disruption need not occur immediately — the merged firm ‘can operate [its] pay-T'V business as a ‘cash cow’ while slowly pivoting to new models.”); Gov't Pre-Tr. Br. 2-3 (same). At trial, however, we learned that those statements were drafted by a lower-level AT&T employee who had nothing to do with the substance of the decision to acquire Time Warner, see Tr. 1777:16-1778:3 (Manty (AT&T), and in any event, were contained in a preliminary draft and were subsequently removed or changed, see id. at 1732:25-1733:25. To be sure, Government counsel endeavored to characterize that subsequent change as a nefarious “sanitization” by lawyers; but testimony indicated that the “whole deck changed” as a result of the parlor room process and its attendant legal review. See id. at 1738:7-13, 1744:8-13. Compare PX363 (Apr. 8, 2017), and PX31 (Apr. 9, 2017), with PX189 (Apr. 8618, 2017). In the final analysis, no upper-level AT&T witness testified to ever having viewed or otherwise relied on the draft statements. To say the least, their probative value was minimal. As it turned out, much of the Government's proffered “ordinary course” evidence went the way of those draft slide deck statements. Compare Tr. 1713:20-23, 1714:3-6 (Gibson (AT&T)) (confirming that internal AT&T documents stated that “NBCU could become a more formidable negotiating power" and that “[cJontent costs could increase” as a result of the expiration of the Comeast-NBCU consent decree) (internal quotation marks omitted), with id, at 1712:14, 25, 1714:1-2, 9-10 (testifying that the document in question represents a “draft understanding of some pretty complicated merger conditions” designed to “brainstorm the what-ifs” of what Comeast-NBCU “may be able to do” that the team and id. at 171$:20-21. 1717:17-18 (email chain, PX11, contains “hadn't finishes very rough understanding of” Comeast-NBCU merger conditions by “individual who reported to me regarding merger conditions for the first time”). See also id. at 1770:25- 1771:12, 1772:16-25 (Manty (AT&T)) (showing that PX184, although sent to two AT&T senior vice presidents in July 2016, was generated in 2014 by team of lower-level AT&T employees and consulting firm members). I need not recount all of the examples here Suffice it to say that | find that the Government frequently “overemphasized the importance and relevance” of the excerpts from defendants’ documents, given that many of them, the testimony revealed, contained “informal speculation” about “rationales for the merger” or were generated by individuals “who had no decision-making role or authority in relation to the merger.” H & R Block, 833 F. Supp. 2d at 77 n.30; cf Dep’t of Justice & Fed. Trade 87Comm'n, Horizontal Merger Guidelines § 2.2.1 (Aug. 19, 2010) (“Horizontal Merger Guidelines”) (“The Agencies give careful consideration to the views of individuals whose responsibilities, expertise, and experience relating to the issues in question provide particular indicia of reliability.”). In a few instances, however. the Government sought to draw evidentiary support from some of AT&T CEO Randall Stephenson's own statements and notes. ‘The Government pointed, for example, to an email that Stephenson sent upon being informed by Time Warner CEO Jeff Bewkes that “Time Warner had ‘taken a 10% stake in Hulu” and that Hulu was going to launch a virtual MVPD.” Gov't POF § 51 (alteration omitted) (quoting PX47). In response to Bewkes’ statement that he did not think the announcement would impact AT&T's relationship with Time Warmer, Stephenson stated that it was “hard to imagine how it won't impact all of our relationships,” continuing that AT&T is “trying to figure out how we navigate a very new world where you folks are going around us while trying to preserve the old revenue streams and business models from us.” PX47. At trial, Stephenson testified that his email indicated his concern that DirecTV Now. the new virtual MVPD AT&T was nding... up” at around that same time, would get the “same access” as one of its virtual competitors, Hulu. Tr. 3475:21-22, 3477:6-7. In this Court's view, expressing concern about how a rival virtual MVPD’ relationship with Time Warner could affect AT&T’s nascent DirecTV Now platform does little to prove how AT&T would likely behave in the event of a vertical integration. The Government also relies on notes that Stephenson drafted to himself in preparation for an AT&T Board of Directors Meeting to discuss the merger, See Gov't 8852. In those notes, Stephenson listed the following as a discussion point: “How can you advantage your own distribution (TV, BB, Wireless) without harming TW position as a wide distributor of content to other SVOD, cable networks, and broadcast networks.” DX609-8. The Government argues that this bullet point reflects “exactly the theory of the government’s case: use content to advantage distribution.” ‘Tr. 3980:4-5 (Gov't Closing): see also Gov't PFOF * 52-53. Not so. Attrial, Stephenson testified credibly that the point of that note was to frame a discussion with his Board “that if there is a thought process that, says we're going to use this content to enhance the distribution business, that means you're going to have to limit the distribution” and that “is counter is how you create value in one of these businesses.” Tr. 3407:16-21. That testimony mirrors the contents of a letter sent by Stephenson to all AT&T officers shortly after the announcement of the proposed merger. In that letter, known among those in defendant companies as the “Magna Carta’ of the merger, Stephenson writes “[t]o Time Warmer employees: We will continue to distribute Time Warner content broadly across the industry. In fact, we want to extend its distribution deeper into mobile so all wireless companies become distribution points for Time Warner content.” DX625-1; see also Tr. 3408:16-22 (Stephenson (AT&T). To be sure, the Government impugns Stephenson’s explanation, calling it “curious” and credulity “strain[ing]” in light of the testimony given about the other notes on the same page. See Gov't PFOF # 53; Tr. 3980:21, 3981:9 (Gov't Closing). But even should I fail to credit Stephenson’s explanation about that particular pre-Board-meeting bullet point, the contents of that bullet point fail to meaningfully advance the Government’s case. To start, as we learned at trial, there are a number of ways in which AT&T could “advantage {its} 89own distribution” through use of Time Warmer content without acting in accordance with the Government's increased-leverage theory of anticompetitive harm. See, e.g., Tr 3220:21-3221:20 (re-stacking and re-editing personalized sets of CNN news clips for access on mobile devices); id. at 3222:4-22 (shooting, producing, and broadcasting live sporting events in 4K resolution); id, at 3223:13-3224:4 (integration of social media and multi-sereen functionality with content). In short, despite the Government's efforts to paint a contrary picture, this not a case containing direct, probative evidence of anticompetitive intent on the part of high- level executives within the merging company. Cf, eg., Whole Foods Mit., $48 F.3d at 1044-45 (Tatel, J., concurring in the judgment) (discussing “Project Goldmine,” as well as other merger-related documents, in which Whole Foods CEO stated, among other things, that company to be acquired is the “only existing . . . springboard for another player to get imto this space” and that “{e]liminating” the company “means eliminating this threat forever, or almost forever"). Stephenson’s statements and the Government's other proffered documentary evidence instead suggest, at the very most, that AT&T (or its third- party consultants) recognized that one possibility of uniting content and distribution would be to withhold or otherwise limit content from other distributors in an attempt to benefit AT&T's distribution platforms, But evidence indicating defendants’ recognition that it could be possible to act in accordance with the Government’s theories of harm is a far ery from evidence that the merged company is likely to do so (much less succeed in generating anticompetitive harms as a result). Cf Baker Hughes, 908 F.2d at 984 (“Section 7 involves probabilities, not certainties or possibilities.”). That is especially true when the 90,Government’s documentary evidence is weighed against the considerable contrary evidence ~ including other evidence related to the motivation for the challenged merger — that came out at trial. See, e.g., Defs.’ PFOF ¥ 49-62 (collecting evidence regarding the proposed merger’s ability to “enable the combined company to respond to the challenges posed by the current transformation of the video marketplace and, in so doing, bring better products and better value to consumers”); see also supra pp. 36-40. Thus, taking such documentary evidence for all it’s worth, that evidence is only marginally probative of the viability of the Government’s increased-leverage theory of harm. 3. Third-Party Competitor Witness Testimony Provides Little Support for the Contention That Turner Will Gain Increased Leverage Due to the Proposed Merger In further support of its bargaining leverage claim, the Government called a number of third-party witnesses from AT&I"s competitor video distribution companies to the stand, Although such companies are “customers” that purchase Turner content, Tr. 18:15 (Gov't Opening), all of them are also competitors of AT&T's video distribution services See, e.g., Tr. 82:7-8 (Fenwick (Cox); id. at 263:19-24 (Schlichting (DISH)). Not surprisingly, most of the third-party competitor witnesses testified that they oppose the challenged merger for a number of reasons. According to the Government, that “direct industry evidence” supports its bargaining claim by describing “how the merger would increase Time Warner’s leverage over distributors.” Gov't Post-Tr. Br. 8. I disagree. For the reasons discussed below, the third-party competitor witness testimony fails to provide meaningful, reliable support for the Government's increased-leverage theory. 1As has been observed in the context of other merger cases, I start by noting the difficulty of determining just how much weight to give the proffered third-party competitors’ concerns about the challenged merger. On the one hand, such testimony can provide the Court with insight into the nature of the industry and a proposed transaction’ potential effects in the market. See Gov't PCOL 448-49. On the other hand — and particularly in the context of a verti | merger case where, as here, upstream customers are downstream competitors ~ there is a threat that such testimony reflects self-interest rather than genuine concerns about harm to competition. Cf Arch Coal, 329 F. Supp. 2d at 145 ( ing 2A Areeda & Hovenkamp, Antitrust Law § $38b, at 239 (““subjective’ testimony by customers” ‘often unreliable"); Horizontal Merger Guidelines § 2.2.2 (noting possibility that customers may voice opposition to merger “for reasons unrelated to the antitrust issues raised by that merger”); Tr. 2462:14-23 (Carlton) (noting that a “rival doesn’t want to see a transaction that makes it(s] competitor more efficient,” even though such a result may be “good for consumer[s]”). As in any Section 7 case, however, the central issue here is whether the Government has proffered sufficient support for the anticompetitive effects it asserts; it is not about protecting AT&T's rivals from any and all competitive pressures they would experience should the merger go through. Cf Aema, 240 F. Supp. 3d at 18 (“[T]he Clayton Act protects ‘competition,’ rather than any particular competitor.”) (citing Baker Hughes, 908 F.2d at 988, 991 n.12). Caution is therefore necessary in evaluating the probative value of the proffered third-party competitor testimony. Cf Ken Heyer, Predicting the Competitive Effects of Mergers by Listening to Customers, 74 Antitrust L.J. 87, 127 (2007) (“In evaluating the likely competitive 92consequences of proposed mergers, competition authorities and courts properly weigh the totality of the evidence, refusing to take the views expressed by customers at face value and insisting that customer testimony be combined with economic evidence providing objective support for those views . For starters. I would note that not all third-party witnesses provided testimony supportive of the Government's predictions that Turner's post-merger bargaining leverage would increase as a result of its relationship with AT&T. For example, when Comeast lead negotiator Gregory Rigdon was asked whether he believed the merger would increase Turer’s bargaining leverage, he answered in the negativ noting that he didn’t “have any reason to believe that it will impact my negotiations with Turner or HBO.” Tr. 884:5-6 (Rigdon (Comeast)). Thus, the evidence indicates that AT&T’s largest video distribution competitor — and thus a significant source of harm in Professor Shapiro’s model, see, e.g., id. at 2665:3-7 (Katz) ~ does not anticipate changing its negotiating strategy with respect to a post-merger Turner. Along those same lines, Randy Sejen, a recently-retired negotiator from Cable ONE, testified that when negotiating with a programmer. “it doesn’t matter to us who owns the network.” /d. at 2102:6-7 (Sejen (Cable ONE). In short, the Government's third-party competitor witnesses were not consistently concerned regarding Turmer’s ability to demand increased affiliate fees post-merger. It is the case, however, that other third-party competitor witnesses expressed “concern about the increased” bargaining leverage or other competitive gains on the part of Turner “that will result from the proposed transaction.” Arch Coal, 329 F. Supp. 2d at 145. Their testimony, however, suffered from shortcomings that, when viewed in light of a