Now that the grocery giant Kroger has certified its substantial compliance with the Federal Trade Commission’s request for information, the antitrust regulator must decide how to proceed with Kroger’s $24.6 billion acquisition of its rival Albertsons. Kroger happens to be based in Cincinnati, my hometown, where it’s an important part of the corporate base. However, I’m rooting against the current deal.
The Kroger–Albertsons merger implicates some of the most pernicious threats from consolidation. According to scholarsand industry watchdogs, concentration in nearly every segment of our food supply has already raised prices, reduced quality, hampered innovation, and forced out independent grocers. There is ample evidence to support a straightforward proposition in antitrust: with fewer direct competitors, large firms wield outsized power—power to squeeze consumers and underprice smaller competitors.
As employers, grocery stores are also buyers in the labor market. Consolidation reduces the number of buyers. When fewer employers compete for workers, wages fall. FTC Chair Khan recently held a listening session in Denver about the merger and heard uniformly negative views from workers. Fortuitously, the FTC’s final review is coming at a time of renewed awareness about the relationship between industry concentration and labor markets. In fact, worker welfare plays a prominent role in the Draft Merger Guidelines issued by the Department of Justice and FTC earlier this year.
Supporters also say that the merger is necessary for Kroger to compete against Walmart, now the industry’s dominant producer. But that depends on how you define the market. As a grocery retailer at the national level, Kroger’s market share does trail Walmart’s (though Kroger is the largest grocery supermarket chain). Yet grocery stores are local phenomena. For instance, Albertsons may be the country’s fourth largest chain, but nonetheless, an individual Albertsons store might be the only grocer within driving distance from several rural communities. If the store shutters after the merger, the chain’s national market share will mean nothing to local consumers.
The FTC must therefore scrutinize market shares at a much more granular level, accounting for the risk of food deserts. In many communities, this risk is exacerbated by the practice of “scorched earth” covenants, whereby a grocer vacating a locale imposes an obligation on the buyer or subsequent tenant not to operate another grocery business. These restrictive covenants have left numerous communities bereft of grocery stores.
However you define the product and geographic markets, grocery stores are critical intermediaries in the way consumers obtain food. The pandemic made this clear. Yet the landscape of these intermediaries is becoming more concentrated. And with vertical integration, Kroger is no longer “just” a retailer; it is also a manufacturer and bottler that has the potential to leverage its dominance in retail (where margins may be slimmer) to production (where margins may be fatter). (Kroger’s Simple Truth brand is an interesting example: with ample shelf space in Kroger stores, it offers a variety of competitively priced natural and organic products.) Elsewhere (e.g., Big Tech), regulators have been going after dominant intermediaries for anticompetitive practices. Critical intermediaries in our food chain should not escape scrutiny.
Finally, Kroger is a leader in data analytics, having acquired the datascience division of British grocer Tesco about a decade ago. The Albertsons merger would give Kroger access to much more consumer information. At this point, it is difficult to predict how this factor might weigh. While the FTC has been looking into the competition and consumer protection implications of big data, data analytics might be an innovation that accelerates as a result of the deal.
Today, there are ever more sophisticated antitrust tools to model and anticipate anticompetitive effects. Driven by the ascent of antitrust progressives, regulators are now looking more broadly at harms, so a court challenge to the acquisition would present an interesting test case. In the Kroger–Albertsons deal, however, the analysis need not be overly complicated. When two rivals in the same industry merge, what most likely happens? What has happened historically with consolidation in the grocery retail markets?
Felix B. Chang is a Professor at the University of Cincinnati College of Law and Visiting Professor at Ohio State University Mortiz College of Law specializing in antitrust. The views in this piece are his and do not reflect the positions of his employers.