The Effect of Global Trade on United States Competition Law and Enforcement Policies

Fordham Corporate Law Institute, 26th Annual Conference on International Antitrust Law & Policy

New York City

Date:
By: 
Robert Pitofsky, Former Chairman

Introduction

All agree that cross-border trade has grown at an extraordinary pace in the last several decades, and most predict that it will continue to grow or even accelerate in the early years of the 21st Century. One consequence of this level of cross-border activity is that mergers, joint ventures, distribution arrangements and other transactions that affect the interests of consumers in two or more (and sometimes as many as 10 or 12) nations have become commonplace.

If it is to continue to be relevant, antitrust must adjust its perspective, though not necessarily its basic rules, to take this new commercial reality into account.

To date, most attention justifiably has been directed to arrangements concerning international coordination and cooperation in enforcement - the procedural side of the ledger. Enforcement officials in many countries recognize that, in most matters, they cannot be effective on behalf of their consumers, nor fair to the business community, unless there are coordinated approaches, similar deadlines for review, and consistent remedies applied to particular transactions. This kind of coordination requires arrangements for exchange of information and views among enforcement officials, while respecting, of course, valid concerns about confidentiality.

I will address a somewhat different question today. In response to this remarkable growth in international commerce, have domestic substantive rules been modified, either expressly or in more subtle forms of interpretation? For example:

  1. Do the same merger rules, and interpretations of rules, apply whether the acquiring firm is a foreign or domestic corporation?  
  2. Do we measure market power in the same way when a substantial portion of sales in the domestic market consists of imports?
  3. What is the impact of global competition on theories of anti-competitive effects - for example on the likelihood of coordinated interaction among firms located in different nations?  
  4. How do we measure efficiencies when most or even all efficiencies from a transaction benefit consumers outside the reviewing country's borders?

In addressing these issues, I will concentrate on United States law and enforcement, with occasional references to the laws and enforcement policies of other countries. I will also focus on merger policy, but many of the observations and conclusions offered would apply equally to non-merger transactions.

A. Some Background Data.

One hundred years ago, a federal antitrust law displaced to a large extent what had previously been state enforcement, largely because major developments in communications and transportation converted the United States from local to regional and then a national market. Federal law of course had a different focus than most state law, and some state law changed at the end of the 19th Century to reflect the new commercial realities. (2) It is worth asking whether a comparable change of law has begun to occur, or is likely to occur, because of the rapid development of international commerce.

The end-of-the-century explosion in international trade affecting the United States can be described briefly. Exports from the United States as a percentage of gross domestic product rose from 7.2% in 1987 to 13.5% in 1997. Imports grew from 10% in 1987 to 15.4% in 1997. Even those numbers fail to capture the remarkable surge of cross-border activity since they do not include financial investment. In 1996 alone, foreign interests invested $350 billion in the United States, mainly in the form of corporate acquisitions.

One consequence of this growth in global competition is a surge in merger activity involving United States and non-United States firms. From 1987 to 1997, merger filings in the United States involving a foreign participant ranged from 15.5% to 51%, with the highest numbers occurring in the middle of that period. Where second requests were issued (indicating a thorough investigation of the transaction by either the Department of Justice or the FTC), a cross-border merger acquisition was involved from 13% to 46% of the instances - again with the highest rates in the middle years.

Even those numbers underestimate reality since an acquisition by a U.S. firm of a foreign firm that does no business in the U.S. does not need to be reported.

It would be remarkable if such a striking change in the way the world does business had no effect whatsoever on competition law and competition law enforcement.

B. Effect on Enforcement.

In the remainder of this paper, I will address the impact of global competition on U.S. law and law enforcement in the following respects: (1) enforcement attitudes, (2) how enforcement agencies and courts measure market power, (3) theories of anti-competitive effect, and (4) treatment of evidence of efficiencies.

1. Enforcement Attitudes.

Several principles stand at the core of the United States national commitment to competition policy. The question that needs to be addressed is whether these principles have been modified as a result of the dramatically increased volume of international trade.

a. National vs. International Goals.

The governing principle of United States' antitrust enforcement was best stated by Michael Porter in The Competitive Advantage of Nations. (3)

As a result of a four-year study of competition in 10 nations, Porter concluded that success in international trade does not depend exclusively or even primarily on labor costs, interest rates, exchange rates or economies of scale. Rather he concluded on the basis of his study that "firms succeed in international trade if they are required to compete vigorously against domestic opponents." (4)

On the basis of his study, Porter concluded that proposals to relax antitrust to facilitate the ability of domestic firms to succeed in international competition are misguided.

The argument that mergers or other transactions (especially in close cases) should be permitted so that firms can grow in size in order to compete more effectively in international markets is often put forward by those defending a transaction. While enforcement officials abroad occasionally accept this "national champion" argument, (5) or subtle variations on the argument, no United States Court has accepted it and to my knowledge, no enforcement agency - under Republican or Democratic leadership - has allowed it to influence its enforcement decisions. (6) In its review of the proposed merger of Boeing and McDonnell Douglas, the Federal Trade Commission did not challenge the transaction but went to some lengths in a separate statement to reject any suggestion that a "national champion" argument influenced its view. (7)

b. Citizenship of Parties to the Transaction.

The citizenship of the owners of the acquiring or acquired company should be and is irrelevant in U.S. antitrust enforcement. There are many examples of foreign firms acquiring U.S. assets without challenge from the enforcement agencies, (8) and there are also examples of American firms that were challenged under U.S. antitrust laws where they attempted to acquire a foreign asset and the acquisition would have had an adverse effect on competition in the United States. (9)

c. Economic vs. Broadly Political Goals.

In a world in which trade success is so essential to national welfare, it is tempting to interpret the antitrust laws to help achieve trade-related goals. Preservation or enhancement of job opportunities and improvements in balance of trade are two prominent examples.

With extremely rare exceptions, the United States enforces its antitrust laws primarily to serve economic goals. Enforcement agencies probably would be more circumspect in examining a transaction that plausibly could affect national defense, (10) and might be more thorough in its analysis if a transaction, such as a television network merger, raised First Amendment considerations. But these are rare exceptions to an overall analytical approach. (11)

It is not nearly as clear that other countries, either in a primary review by antitrust enforcement officials, or a secondary review by a separate agency, will exclude international trade, protection of jobs, and other non-economic considerations. (12)

At least to date, the pressure of international trade has not led United States antitrust enforcement authorities to move beyond its essentially economic review. Indeed if there has been any international movement on this front in the last several decades, it probably involves non-U.S. countries becoming more focused on economic rather than broadly political considerations. (13)

2. Measurement of Market Power.

Measurement of market power is an essential feature of most antitrust enforcement. (14) The growth of imports and exports worldwide means that it is all the more important to take foreign production into account.

The inclusion of foreign production typically can have two significant effects on antitrust enforcement. When a transaction involves two domestic firms, inclusion of imports can reduce the market shares of the merging parties and serve as a defense to a charge that the transaction is illegal. On the other hand, when a merger is between a domestic and a foreign firm that exports to the United States, the inclusion of imports from the foreign firm may convert what otherwise would be a conglomerate merger into a horizontal transaction, and trigger application of far more restrictive rules. (15)

Twenty or thirty years ago, there was a quiet debate in the United States about how to treat imports. Some argued that imports to the United States should not be counted as part of the relevant market because the source of competition from those products is fragile and easily disrupted by tariffs, quotas, voluntary restrictive agreements and similar political or economic barriers. (16) At the opposite end of the spectrum of views, others argued that where a foreign firm does a significant amount of business in the United States through exports, measurement of market power should take into account not only present exports but also all the productive capacity of those foreign firms. The theory was that the firms had already demonstrated an ability to compete in the United States, and if prices increased as a result of any merger, all of the production of the foreign firm could be shifted to the United States and thereby defeat or deter any possible exploitation of consumers. (17)

Neither of these all-or-nothing positions has prevailed. It is true of course that international trade is more easily disrupted by political and economic factors than interstate trade, but the fact that a firm has overcome whatever obstacles exist should suggest that its sales be counted as a relevant factor in measuring market power. As to the proposition that firms doing significant business in the United States would divert production in the event of a post-merger price increase, that too has some validity but is impractical when carried to an extreme. Assuming automobile prices in the United States were to increase following a possible merger between Daimler-Benz Chrysler and Ford, all Toyotas manufactured in Japan and all Volkswagens manufactured in Germany would not be exported to the United States for the simple reason that, in that event, prices in Tokyo and Berlin would increase and make it profitable to continue sales in the local market. (18)

The United States approach to measuring market power, as reflected in the 1992 Horizontal Merger Guidelines, (19) has been to take special factors affecting foreign trade into account and to estimate the magnitude of such trade in the United States market on a fact-specific, case by case basis. There are some differences when exports are the subject of review. If exchange rates fluctuate significantly, market shares may be measured over a longer period of time. If quotas are imposed, that will set a cap on the volume of exports that will be taken into account. But the inquiry is fact-specific and, absent special circumstances, exports are treated on a par with domestic production. (20)

There are of course significant problems of access to reliable information when foreign production is at issue. It is more difficult to determine a foreign firm's volume of exports, how a foreign firm would respond to a price increase in the United States market, and foreign firms' plans for entry or expansion. The guiding rule, however, is pragmatic and in general allows United States enforcement officials to incorporate the growing volume of imports and exports where that flow of trade reliably affects measurement of market power. The overall impact has been growing sensitivity of agency personnel and courts to the significance of imports and exports, a sharp increase in the number of instances where investigations or cases were influenced by the presence of substantial imports and, in a very general way, a reduction of instances where antitrust enforcement was found to be necessary to protect U.S. consumers. (21)

3. Theory of Anti-Competitive Effects.

United States law looks to possible anti-competitive effects as a result of mergers. First, a merger may diminish competition by reducing the number of firms selling in the relevant market so that they can more successfully engage in coordinated interaction that injures consumers. (22) Second, a merger may create a firm with sufficient market share that it can unilaterally lessen competition by raising price or curtailing output without fear that other firms can defeat its market maneuvers. (23)

With respect to vertical mergers, the agencies inquire whether combinations of customers and suppliers can injure competition because competitors of the customer may not be able to obtain reliable sources of supply from the merged supplier, and competitors of the supplier may not be able to obtain business on equal terms from the newly merged customer. The most common theories for challenging a conglomerate merger are that the acquiring firm, but for the acquisition, would have entered and added a new competitor to the market ("actual potential entry") (24) or, as a result of the acquisition, the firm outside the market is removed as a threat to enter ("perceived potential entry"). (25)

The theories of law applying to horizontal, vertical and conglomerate mergers among domestic firms in the United States are exactly the same theories that would apply if a foreign firm is the acquiring or the acquired party.

Complications do arise, however, because facts relating to foreign firm activities are difficult to ascertain and likely effects across borders are far more difficult to predict. For example, in inquiring whether coordinated effects are significantly more likely to result from a merger, so that price and output decisions can be coordinated, one must look to an array of factors that would not be present in reviewing a domestic merger. Among many examples, currency fluctuations make coordinated action difficult, and departures difficult to detect. Supply and demand conditions, taxation levels, consumer tastes and transportation difficulties (including various costs of transportation and uncertainties introduced as a result of transportation) could make coordinated price and output behavior very difficult to manage. To put the matter concretely, if a merger reduced the number of firms in a market from four to three, the product for sale was homogeneous, and there were high entry barriers, it is likely that enforcement agencies would be seriously concerned. On the other hand, if one of the remaining firms is located in Europe, a second in Japan and a third in the United States, and the antitrust concern is coordinated effects, one must take the various differences in cross-border trade into account. A careful examination of fact may indicate that coordinated action is simply implausible.

Of course, if each of the firms sold through a United States' distributor, and each distributor had the power to control price and output, there would be little reason to treat the issue of coordinated effects any differently than if the three producing firms were all located within the United States.

I should emphasize that the hypothetical situation described here, locating firms in three different countries, would be rare. I offer it primarily to illustrate a point. Also, I address here exclusively non-conspiratorial collaborative effects. In recent years, Antitrust Division enforcement has shown clearly that hardcore cartels occur all too frequently, with participation by firms located in many different countries. In some theoretical sense, uniform policies may appear difficult to coordinate and monitor, and yet the real world demonstrates to us that such arrangements often do occur. (26)

A similar attention to special facts would influence an analysis of unilateral affects in horizontal mergers, and vertical and conglomerate mergers as well.

4. Efficiency Defense.

One of the more interesting questions relating to the impact of global competition on antitrust rules involves the existence and scope of an efficiency defense to a charge that a merger or joint venture is illegal.

a. Background.

It's a familiar story now recounting how most of the United States major trading partners, including Germany, the United Kingdom, France, Canada and Australia took efficiencies into account when mergers and joint ventures were reviewed. (27) In the United States, claims of efficiencies could be offered as a relevant factor in the exercise of prosecutorial discretion by the Department of Justice or the Federal Trade Commission, but according to clear Supreme Court precedent, were not relevant when a transaction was examined in court. (28) In the revised Horizontal Merger Guidelines issued in 1997, the U.S. antitrust enforcement agencies for the first time clearly indicated a willingness to take efficiency claims into account in every forum and elaborated on what constituted cognizable efficiencies.(29)

It is fair to ask what happened in the mid-1990s to persuade the enforcement agencies to open their merger enforcement process to efficiency claims. Many would argue that the Guideline revision was a sensible elaboration of relevant lines of evidence (30) and that it was only a matter of time before merger analysis, as most of the rest of U.S. antitrust analysis, acknowledged the relevance of efficiency claims. My own view is that antitrust scholars as well as the business community, legislators and judges were aware of the challenge presented to United States firms when they found themselves competing in a global market, and further aware that in an open global market the most efficient will prevail. The wider availability in the U.S. of an efficiency defense was itself a response to the vast increase in global trade.

b. Standards to Measure Efficiency Claims.

There are two significantly different approaches to the measurement of efficiency claims. Some countries adopt a total welfare standard, and take into account as a justification for a merger or joint venture efficiencies that accrue either to consumers of the product of the combined firms, or efficiencies that accrue to the producers and are then converted into competitively significant expenditures like improved distribution or simply pocketed by the firms. The Canadian Merger Guidelines offer a sophisticated and clear explication of the total welfare standard. (31) Revised Merger Guidelines in the United States, and cases decided subsequent to publication of those Guidelines, require that the efficiencies are of a character and magnitude sufficient to reverse the merger's potential to harm consumers. In effect, the history of the firms or the structure of the market must insure that the efficiencies will be passed on to consumers in the form of lower prices or better products, or at a minimum, that the merger will not lead to adverse price, quality or output effects.

Assuming as I do that an efficiency defense in American law is at least partly a response to global competition, the pressure of that competition has not been sufficient to trump the United States primary commitment in enforcement of its antitrust laws to serve the goal of welfare of consumers.

C. Treatment of Cross-Border Efficiencies.

In general, United States law with respect to mergers and joint ventures has not been receptive to arguments that anti-competitive effects in one market can be justified by pro-competitive effects (produced by efficiencies or otherwise) in a separate and different market. Section 7 of the Clayton Act, the controlling federal statute covering mergers and joint ventures, refers to anti-competitive effects " in any line of commerce . . . in any section of the country." (32) That could be interpreted as precluding an offset defense between separate markets. Also, the Supreme Court in Philadelphia National Bank (33) concluded that anti-competitive effects in one product or geographic market cannot be offset by pro-competitive effects or by improving the ability of a firm to compete in a different product or geographic market.

In the 1997 Revised Horizontal Merger Guidelines, the Department of Justice and the Federal Trade Commission acknowledged the law's hostility to offset defenses, but noted in a footnote that an agency "in its prosecutorial discretion will consider efficiencies not strictly in the relevant market, but so inextricably linked with it that a partial divestiture or other remedy could not feasibly eliminate" anti-competitive effects. (34) This escape valve in the form of prosecutorial discretion was introduced to address situations in which the anti-competitive effect was small and the efficiencies were great.

To date, none of the parties advocating a transaction has argued that overseas efficiencies are so compelling and so intertwined with consolidation in a domestic market that we should tolerate a significant anticompetitive effect at home. If that argument were advanced, we would consider it but our approach would be skeptical. This is not a strictly chauvinistic interpretation of American merger law. First, it is consistent with the basic premise with which I introduced this discussion - i.e. that domestic firms are best able to succeed in international markets if required to compete vigorously at home. Justifying anti-competitive effects in a domestic market in order to assist firms competing abroad - an approach adopted by Canada, France, the United Kingdom, and probably several other countries(35) - is simply inconsistent with the whole approach of United States merger enforcement. Second, balancing anti-competitive effects in a domestic market against efficiencies in a foreign market is unusually difficult. Finally, it is an unattractive prospect to "tax" United States consumers (as a result of the domestic anti-competitive effect) in order to confer benefits on U.S. exporters and non-U.S. consumers.

Conclusion

Overall, there has been less adjustment in basic American antitrust law in response to the increase in global trade than one might expect. Enforcement goals, measurement of market power, and theories of anti-competitive effect are about the same. If there have been changes (for example, slightly increased attention to unilateral effects as a result of mergers), the changes are probably more appropriately traced to new scholarship than changes in trade patterns. The single exception might be increased willingness to accept efficiency defenses to mergers, but there were good reasons for this important change in American antitrust policy that had nothing to do with global competition.

The principal difference in recent years is an increased sensitivity to the facts of international trade. Imports have not only increased in volume but agency personnel and courts are more sensitive to their significance. Where coordinated effects are alleged, the fact that they may occur across borders is one more factor to take into account on whether there are likely to be substantial anti-competitive effects.

At least in the United States and at least so far, basic principles of competition policy have remained fairly stable in the face of the vast increase in international trade and investment.

Endnotes:

1. Chairman of the United States Federal Trade Commission. The views expressed are my own and do not necessarily reflect the views of the Commission or other Commissioners.

2. See Herbert Hovenkamp, Enterprise and American Law, 1836-1937, at 241-67 (1994); see also Alan J. Meese, Liberty and Antitrust in the Formative Era, 79 B.U.L. Rev. 1 (1999). Notably, some European states are similarly revising their competition laws to reflect developments in European competition policy. See David J. Gerber, Europe and the Globalization of Antitrust Law, 14 Conn. J. In'tl. L. 15 (1999).

3. Michael E. Porter, The Competitive Advantage of Nations (1990).

4. Id. at 662-64.

5. Robert Pitofsky, Proposals for Revised United States Merger Enforcement in a Global Economy, 81 Geo. L.J. 195, 246-48 (1992).

6. A pure "national champion" argument asserts that firms need to be of a minimum size in order to compete effectively in global markets. If the argument is presented somewhat differently - i.e., the combination of firms will be more efficient and thus more formidable in global competition - that raises much more complicated issues that will be addressed in a later section of this paper.

7. See Statement of Chairman Robert Pitofsky and Commissioners Janet D. Steiger, Roscoe B. Starek III and Christine A. Varney in the Matter of Boeing Company/McDonnell Douglas Corporation, File No. 971-0051 (July 1, 1997).

8. For example, Daimler Benz's acquisition of Chrysler did not result in even a second request from the FTC. Another example is Robert Bosch's 1996 acquisition of AlliedSignal's automotive braking business.

9. See, e.g., Federal-Mogul Corp., Dkt. No. C-3836 (Dec.12, 1998) (divestiture required in acquisition of T&N, a British thinwall bearings manufacturer). The FTC was also prepared to challenge a domestic firm's recent acquisition of a European competitor's manufacturing facilities, but the parties abandoned the transaction before the Commission voted.

10. Office of the Under Secretary of Defense for Acquisition & Technology, Report of the Defense Science Task Force on Antitrust Aspects of Defense Industry Consolidation (April 1994).

11. It has often been noted that the Exon-Florio Act, Pub. L. No. 100-418, § 5021, 102 Stat.1107, 1425-26 (1988), allows United States officials to block a merger that threatens to impair national security. But that statute has been invoked only twice in over 10 years, and seems fairly close to a dead letter today. In April 1989, the Bush Administration used the Exon-Florio amendment to block the acquisition of General Ceramics, Inc. by Tokuyama Soda Co. In February 1990, the Bush Administration used the amendment to require a government-owned Chinese aerospace company to divest MAMCO Manufacturing, an aircraft components supplier. In 1988, the Antitrust Division of the Department of Justice made clear that the Exon-Florio process was "completely separate" from the Department's analysis of acquisitions by foreign firms. See U.S. Department of Justice, Antitrust Division, Antitrust Guidelines for International Operations (1988) (withdrawn April 1995).

12. For example, the United Kingdom's Monopolies and Mergers Commission may incorporate factors such as employment and international competitiveness when determining whether a practice or transaction is in the public interest. See Fair Trading Act of 1973 § 84(1) (U.K.). See also Lawrence A. Sullivan & Wolfgang Fikentscher, On the Growth of the Antitrust Idea, 16 Berk. J. Intl. L. 197, 230 (1998) (describing evolution of German antitrust law and noting multi-valued objectives of German antitrust legislation, including preservation of employment, environment, and international competitiveness).

13. For example, one of the first and most significant decisions by the European Commission under the Merger Control Regulation was Aerospatiale-Alenia/DeHavilland, 1991 O.J. (L 334) 42, in which the Commission made clear that competition policy would not be used as a tool to create "European champions" to dominate either European or global markets.

14. The exception of course, is a narrow range of agreements characterized as per se illegal, where market power is not necessary to a finding of a violation. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).

15. Even when foreign competition does not lead to broader geographic market definitions, it may affect the analysis of competitive effects and entry or expansion.

16. See scholarship supporting that position summarized in Robert Pitofsky, Proposals for Revised United States Merger Enforcement in a Global Economy, supra note 5 at 248.

17. See William M. Landes and Richard A. Posner, Market Power in Antitrust Cases, 94 Harvard Law Review 937, 964 (1981). The proposal was offered in connection with measurement of monopoly power but would appear to be relevant to analysis of mergers and joint ventures as well.

18. Chapter 4, FTC Staff Report, Anticipating the 21st Century: Competition in the New High-Tech, Global Marketplace (1996).

19. U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines § 1.43, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104 (hereinafter "Merger Guidelines") (April 2, 1992), as amended, April 8, 1997.

20. In some recent merger cases, the Commission has acknowledged global geographic markets. See, e.g., ABB, Dkt. No. C-3867 (Apr. 22, 1999) (process gas chromatographs and process mass spectrometers); Federal-Mogul Corp., Dkt. No. C-3836 (Dec. 12, 1998) (thinwall bearings); Digital Equipment Corp., Dkt. No. C-3818 (July 20, 1998) (microprocessors); Associated Octel Co. Ltd., Dkt. No. C-3815 (June 24, 1998) (lead anti-knock compounds). See also Allied Signal, Inc. v. B.F. Goodrich Co., 1999-2 Trade Cas. (CCH) ¶ 72,564 (7th Cir. 1999) (global market for landing gear used in commercial aircraft). In other cases, the Commission has alleged markets confined to North America where shipping costs made broader markets unrealistic. See Rohm & Haas Co., Dkt. No. C-3883 (Aug. 2, 1999); Exxon Corp., Dkt. No. C-3833 (Nov. 4, 1998); Degussa Aktiengesellschaft, Dkt. No. C-3813 (June 19, 1998).

21. One of the more difficult issues in coming years will be defining the scope of geographic markets in innovation market cases. For example, geographic markets for pharmaceutical and medical device mergers are almost always limited to the United States, due in large part to FDA regulations. But innovation may conceivably occur in any part of the world, even if firms do not commercialize their products in the United States. Thus, if a merger raises concerns only with respect to innovation, the innovation market could be global even if product markets are national.

22. Merger Guidelines § 2.l.

23. Merger Guidelines § 2.2.

24. United States v. Marine Bancorporation, Inc., 418 U.S. 602, 639-40 (1974).

25. United States v. Falstaff Brewing Corp., 410 U.S. 526, 533-34 (1973).

26. It may turn out that the most direct and significant consequence of the increase in international trade is the apparently parallel increase in international cartel activity. The Department of Justice's criminal enforcement to date, and its current investigations, is some evidence of that change. This paper is concerned with modifications in interpretation of U.S. antitrust law, and therefore the subject of augmented international cartel activities is beyond its scope.

27. For a summary of foreign law, see Robert Pitofsky, Proposals for Revised United States Merger Enforcement in a Global Economy, supra note 5 at 213-15.

28. See, e.g., FTC v. Procter & Gamble Co., 386 U.S. 586, 580 (1967).

29. Merger Guidelines § 4.

30. See, e.g., O.E. Williamson, Economies as an Antitrust Defense: The Welfare Trade-Offs, 58 Am. Econ. Rev.18, 21-23 (1968); J.F. Brodley, The Economic Goals of Antitrust: Efficiency, Consumer Welfare and Technological Progress, 62 N.Y.U.L. Rev. 1020 (1987).

31. See Director of Investigation and Research, Canada, Merger Enforcement Guidelines at 45-51 (1991), reprinted in 60 Antitrust & Trade Reg. Rep. (BNA) Spec. Supp. No. 1513 (September 25, 1991); see also Margaret Sanderson, Efficiency Analysis in Canadian Merger Cases, 65 Antitrust L.J. 623 (1997).

32. 15 U.S.C. § 18 (1982).

33. 374 U.S. 321 (1963).

34. Merger Guidelines § 4 n.36.

35. See, e.g., Competition Act § 96(2), R.S.C. ch. C-34 (1985) (Can.) (as amended) (Competition Tribunal should consider whether otherwise anti-competitive transaction may result in significant increases in "the real value of exports" that could offset harm to Canadian consumers); Ordinance No. 86-1243 (1986) § 41 (France) (permitting consideration of national and international competitiveness); Fair Trading Act of 1973 § 84(1) (U.K.).