By Lisl Dunlop and Shoshana Speiser ( August 25, 2017, 12:01 PM EDT) -- The "failing firm" defense as a justification for permitting a merger that may otherwise lessen competition gets considerable play in health care transactions. Perilous hospital economics — often brought on by low Medicare and Medicaid reimbursement rates and high uncompensated care costs — are frequently a significant factor in the economic drivers for merging or entering into a partnership with a neighboring hospital. Very few merging firms, however, have been successful in invoking the defense before the federal antitrust agencies. Two recent cases — one in health care and the other in the waste disposal industry — provide insights into using the failing firm defense in practice....