Concurring Statement of
Docket No. C-3790
I agree with my colleagues that the final decision and order properly addresses the anticompetitive implications of the proposed transaction, and I concur in the Commission's decision except to the extent that the order makes the Department of Defense a participant with the Commission in giving antitrust approval to any divestiture under the order.
As I said in my concurring statement in Litton Industries, Inc./PRC, Docket No. C-3656 (May 7, 1996), with due deference to the Department of Defense and in full recognition that it has the power to decide the firms with which it will deal for goods and services vital to the national security, no persuasive argument has been presented to suggest that the Department has or should have a role in deciding the competitive implications of a particular divestiture under Section 7 of the Clayton Act. No showing has been made that this case is unique, that national security issues or concerns relating to the integrity of the Ballistic Missile Defense Organization's Lead Systems Integrator Program, to the extent they may be affected by this order, could not have been addressed, as they apparently have been in other defense-related transactions,(1) without inclusion of the Department of Defense as a necessary participant in a decision committed by statute to the Commission.
The need to obtain technical assistance in reviewing commercial transactions in sophisticated markets is not uncommon. The importance of obtaining advice and assistance is especially acute in cases involving issues of national security, a subject that is in the province of the Department of Defense and other security agencies. The Commission might well find it necessary to consult with the Department of Defense both to assess the viability of a proposed buyer of the BDM assets to be divested and to ensure that a proposed transaction is not inconsistent with national security. I would have preferred, however, to accommodate that need in this case by means other than making the Department of Defense a partner with the Commission in interpreting and applying a final order of the Commission.
(1) See Lockheed Corporation, C-3576 (May 9, 1995); see also ARKLA, Inc., 112 F.T.C. 509 (1989).