Richard Anderson: Completing airline merger has become harder

ATLANTA – Delta CEO Richard Anderson said it has become harder to complete an airline merger.

The carrier’s 2008 acquisition of Northwest, approved by regulators within seven months, “was probably the quickest transaction of its size that’s ever gone through the Justice Department,” Anderson said Tuesday on an earnings conference call. “I think it’s a different environment now,” he said.

The question was posed as United is engaged in merger-related discussions with both Continental and US Airways.

While the Northwest deal was made in the final year of the Bush Administration, the Obama Administration is widely felt to be less receptive to airline transactions. Anderson said a slot swap proposed by Delta and US Airways “has actually been pending longer than the merger of Delta and Northwest.”

One reason the Northwest deal moved quickly, he said, was that Delta overwhelmed regulators with information. “We had at one time almost 270 lawyers between Northwest and Delta working on gathering documents, we complied with the second request from DOJ within 90 days (and) I think we produced 35 million documents,” he said.

The proposed slot swap was submitted in August. In February, the U.S. Transportation Department said it was seeking slot divestitures by Delta at New York’s LaGuardia Airport and by US Airways at Washington Reagan National Airport. In March, Delta and US Airways offered a revised deal that included divestitures, but not as many as regulators were seeking. That offer is pending.

Delta general counsel Ben Hirst, formerly Northwest general counsel, noted that it is the courts, rather than the Justice Department, that has the final call on airline transactions, “whether you’ve got this administration in place or the last one.”

“The parties are free to close,” Hirst said. “The only way it gets stopped is if justice decides to sue and is able to convince the court that the merger is anti-competitive.” Given the rapid expansion of low-cost carriers and the potential benefits to consumers from combining airline networks, it could be difficult for the justice department to prove that a proposed merger is anti-competitive, he said.

Because a United/US Airways deal would likely raise questions regarding the two carriers’ market dominance at both National and Washington Dulles airports, Hirst was asked whether the proposed slot swap has been affected. He said he expects regulators to “act on the application before any merger-related decisions can be made.

“If there were to be at the end of the day an agreement involving Airways, there is no reason for the slot swap transaction not to go forward,” he said. “If an excessive concentration level resulted, the Justice Department could require divestitures. (But) our view is that the slot swap transaction is independent of any merger discussions that may be under way now.”