Sidelined: Women economic experts seldom testify in merger challenges

By Kathleen Murphy

Washington, D.C. (February 14, 2023) -- Women rarely testified as economic experts in US horizontal merger challenges during the past two decades.

It means women’s perspectives go unheard, and it reflects an economics profession dominated by men and plagued by discriminatory behavior.

Elinor Hoffmann, chief of the antitrust bureau at the Office of the New York Attorney General, said infrequency of women’s testimony is “a chicken-and-egg problem” because enforcers seek economic experts with experience testifying.

“One of the first questions when we're looking for a consulting and testifying economist is, ‘how many times have you testified in the past?’” Hoffmann said at a January ABA Antitrust Law Section forum on gender and inclusivity. “There are many talented economists out there. So, I think we have to work hard at getting around that problem.”

Rare testimony

The federal government rarely calls women economic experts to testify:

Across 23 challenged horizontal mergers, a woman economic expert testified on behalf of the government in only one — less than 5 percent — of 23 challenged horizontal mergers litigated in federal court between 2006 and 2020, according to data collected by economist Elizabeth Bailey of Charles River Associates when she worked at NERA Economic Consulting.

Bailey’s study of women economic experts didn’t count cases in vertical merger trials or those in which women economists were slated to be the testifying economic expert in challenged horizontal mergers that the parties later abandoned. It also didn’t account for women testifying as economic experts in challenged horizontal mergers via the Federal Trade Commission’s Part 3 administrative litigation channel, or arbitration with the Department of Justice’s antitrust division.

Similarly, a look by FTCWatch at the situation since 2020 showed the pattern continuing, with no women economists testifying for the federal government:

Nicholas Hill testified in the Penguin Random House-Simon & Schuster case.

Hal Singer testified in the Meta Platforms, Inc./Mark Zuckerberg-Within Unlimited case.

Dov Rothman testified in the US Sugar-Imperial Sugar case.

DOJ in-house economist Mark Chicu testified in the Booz Allen-EverWatch case.

Gautam Gowrisankaran testified for DOJ in the UnitedHealth Group-Change Healthcare case.

Hill and Rothman provided no comment, and Singer, Chicu and Gowrisankaran did not immediately reply to a request for comment. The FTC and DOJ did not immediately reply to a request for comment.

The data includes challenged horizontal mergers (not vertical mergers) that were litigated in US federal (not state) court and had an opinion or decision written. It shows how infrequently a woman is the government’s testifying economic expert in US horizontal merger challenges.

Merging parties call women experts more often than the government, with at least seven women testifying in high-stakes merger cases since 2006. For example, parties called Bailey in the Booz Allen-EverWatch case.

Barbara Fecso, an economist who worked at the Agriculture Department for almost 30 years, testified in the US Sugar-Imperial Sugar case. Fecso had no comment about the frequency of women testifying as economic experts in US horizontal merger challenges.

Economic experts often testify about the proper definition of product and geographic markets, assess the likelihood of new entrants, and develop models to evaluate merger efficiencies as compared to potential competitive harm.

It pays

Testifying as an expert economist is lucrative. FTC expert witnesses were paid $750 an hour on average in fiscal 2017 and 2018, according to the FTC’s inspector general. Between fiscal 2014 and 2020, the FTC’s costs for expert witness services rose from $7.7 million to $21.3 million.

The cost of external expert witnesses and expensive contractual obligations remain a top risk to the FTC, according to an IG report.

“Outside experts are often employed in specialized occupations that require vast knowledge in narrow subject areas, and the knowledge, education, and professional experience required to develop a skillset for consideration as an expert can take years to develop. Serving as an expert witness can also be demanding and stressful, requiring mental resiliency and an ability to handle opponent criticism,” the IG said.

Availability of women experts

In looking for a solution to gender disparity, enforcers hiring the experts said participation in regulatory proceedings and academic qualifications can boost a potential expert’s credentials.

“Teaching is a super important qualification. When you teach, you have to understand something. You have to explain it really well,” said Hoffmann of the New York AG’s office.

Dominated by men

But women compose a minority in the economics profession overall.

Since the mid-2000s, women were just under 35 percent of economics PhD students and 30 percent of economics assistant professors, according to research by Shelly Lundberg, UC Santa Barbara professor of demography, and Jenna Stearns, assistant professor of economics at UC Davis.

Including women in the economics profession is important because a greater breadth of individual perspectives will affect what is taught in the classroom, what research questions are asked and how policy discussions are addressed, the researchers said.

Are there gender differences in providing “the truth, the whole truth and nothing but the truth”?

Female economists have, on average, different views about policy and markets than men, Lundberg said. She said research shows more women in economics than men would like economics to be “more policy-focused, multidisciplinary, innovative and risk-taking.”

“So, would it make a difference re testimony to the FTC? Maybe,” Lundberg said in an email.

“There are differences between male and female economists, and so the lack of diversity in a lot of different domains, teaching being one, expert testimony potentially another, means that what we get when we get economists talking is, we get mostly male economists talking,” Lundberg said in an interview. “Women sort of did progress rapidly in economics in the ‘70s and the ‘80s. And so one of the depressing things about the period since the mid ‘90s, is that, you know, that progress just stalled out.”

Lundberg and Stearns’ research said it’s difficult to quantify the “adversarial and aggressive culture” within academic economics that’s often cited as the reason for women’s stalled progress in the profession.

‘Inappropriate behavior’

Quantifying outright harassment in economics may be challenging, but there is empirical evidence of women in economics “experiencing inappropriate behavior in job interviews, seminars, meetings, and at conferences,” Lundberg and Stearns found.

A survey of American Economics Association members in 2019 found 48 percent of women were discriminated against on the basis of sex within the previous decade.

Alice Wu, a Harvard University doctoral student, discovered language used “to describe female economists on at least one anonymous online forum is often sexual and derogatory, in a way that it is not for men.”

Wu studied the extent of gender stereotyping in more than a million posts on the Economics Job Market Rumors forum. She showed “when women are under discussion, the discourse tends to become significantly less academic or professionally oriented, and more about personal information and physical appearance.”

Once women are mentioned in a thread, the topic is likely to shift from academic to personal, Wu wrote.