When scale is strength in the battle against Google, Facebook, Apple and now Amazon, the New Zealand High Court may be unwittingly siding with the big boys in its decision to block the merger of NZME and Fairfax in that country.

This morning's decision to uphold that of the NZ Commerce Commission that a merger between the two may not go ahead, will be a blow to two publishers seeking a pragmatic solution to a common dilemma.

Fairfax has been doing well with its Stuff.co.nz website and the advertising industry has rallied behind the KPEX advertising exchange, but both depend on scale which is being progressively eroded by the digital giants.

The ruling of High Court Justice Robert Dobson has yet to be released but a minute says he reached the same conclusion as the commission in respect of "four of the six markets".

On media plurality, he justifies the commission's right to an opinion - that there was a "prospect of reduced quality" of the products - and seems to be saying that the importance of maintaining media plurality may be worth the commercial risk to the publishers. "We cannot be certain that a material loss of plurality will occur because of the factors we review that would hopefully assist in maintaining it," it says.

More realistically, the idea that the market for Sunday newspaper advertising would be substantially lessened was not upheld by the court, nor was the likelihood of one of the publishers introducing a paywall as a result of its post-merger market position. Presumably paywalls are going to be a necessary component in the business mix of the future in any case, much having already changed in the 19 months the process has taken.

Both NZME and Fairfax Media - who may face a bill for the NZCC's court costs - say they will review the full judgment, with NZME leaving the option of an appeal open.

Meanwhile, it may be "busi9ness as usual", for Fairfax NZ at least. Chiefexecutive Sinead Boucher said this morning she expected the two would continue to look for areas where they could cooperate: "I don't see any reason that would change," she said. The two have been sharing some production since 2014, with NZME's Ellerslie (Auckland) plant printing and distributing some Fairfax newspapers.

She said that while the two remained "very competitive around our journalism", they were fortunate that - in New Zealand - the main media companies could operate "really collegially" where there was shared advantage.

NZCC earlier said the merger - under which NZME would have bought out Fairfax NZ for NZ$55 million (A$50.2 million) - would concentrate media ownership and influence to an "unprecedented extent" for a well-established modern liberal democracy.

Like Australia's competition watchdog - which sees the massive Amazon as incapable of being able of (illegally) misusing market power in that country because it doesn't yet have that scale - the law may be failing to deliver the protection it was established to provide.

Peter Coleman