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In this case, Anthem is pursuing all options to keep the deal alive. “Perhaps this is a situation where the court might hear the case,” he said. “On the other hand, the kinds of efficiencies we’re talking about here are not those parties typically argue in merger cases,” he added. Health care is different from other markets, and the benefits that Anthem argues customers will get might be specific to some health insurance markets. The case might be unique and therefore less likely to be heard by the Supreme Court, Katz said. Also, the nature of the economic benefits that Anthem is pressing—the result of an improved negotiating position with suppliers—raises more questions. The courts have not yet addressed whether the lower doctor and hospital rates that a merged Anthem-Cigna could negotiate would be based on the new entity having too much concentrated market power as a buyer. The DOJ claimed that’s what would happen in its suit to block the deal. Before 1974, appeals of government merger challenges went directly to the Supreme Court because of a district court ruling under the Expediting Act of 1903. Congress changed that procedure when it passed the Tunney Act in 1974, which sent antitrust merger challenge appeals through the circuit courts like most other cases. The change meant a sudden drop in Supreme Court review for these cases.

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