Considerable dispute over the goals of the antitrust laws has surfaced in scholarly commentary on the subject. 1 While it is unanimously agreed that Congress enacted these laws to encourage competition, disagreement continues over Congress' ultimate goals. 2
EFFICIENCIES 1585 other method of considering efficiencies: 2 raising the market-share and concentration levels above which the Government will challenge mergers. 22 In addition, the Justice Department and the Federal Trade Commission will, to a very limited degree, consider efficiencies in decisions about whether to prosecute. 2 3 In this Article, we examine closely the congressional, judicial, theoretical, and empirical support for incorporating efficiencies into merger enforcement. In the process, we demonstrate that the implementation of efficiencies on a case-by-case basis is far more complex and problematic than supporters of this approach have indicated. In Part II, we argue that Congress' primary concern was with preventing unfair wealth transfers from consumers to firms with market power. Nevertheless, the legislators also wanted to achieve their distributive goals with a minimum of loss of economic efficiency and failed to realize that these two goals sometimes would be in conflict. Congress, then, never addressed the Williamsonian market-power/efficiencies tradeoff. In this Part, we also consider judicial treatment of an efficiencies defense under both section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act. We conclude that the Supreme Court's 21. The 1982 Guidelines and the FTC Statement place substantially more emphasis on efficiency considerations, in sharp contrast to the 1968 Guidelines. The 1968 Guidelines state: Unless there are exceptional circumstances, the Department will not accept as a justification for an acquisition normally subject to challenge under its horizontal merger standards the claim that the merger will produce economies (le., improvements in efficiency) because, among other reasons, (i) the Department's adherence to the standards will usually result in no challenge being made to mergers of the kind most likely to involve companies operating significantly below the size necessary to achieve significant economies of scale; (ii) where substantial economies are potentially available to a firm, they can normally be realized through internal expansion; and (iii) there usually are severe difficulties in accurately establishing the existence and magnitude of economies claimed for a merger. 1968 Merger Guidelines para. 10, reprintedin 2 TRADE REG. REP. (CCH) 4510, at 6885 (May 30, 1968) [hereinafter cited as 1968 Merger Guidelines]. The Department overstated its first two points; we strongly concur with the third point. See infra Part III. Although the Federal Trade Commission did not issue numerical standards, it will give "considerable weight" to the Justice Department figures.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.