FTC Enforcement Under Section 7 of the Clayton Act

Remarks by

Mary L. Azcuenaga

Commissioner
Federal Trade Commission

before the

Practising Law Institute

Twenty-Fourth Annual Advanced Antitrust Workshop
Fort Lauderdale, Florida

March 9, 1994

The views expressed are those of the commissioner and do not necessarily reflect those of the Commission or of any other commissioner.

Good afternoon. I am very pleased to be here today at the Practising Law Institute's 24th Annual Advanced Antitrust Seminar. I plan today to talk about merger law enforcement from my perspective as a commissioner at the Federal Trade Commission. Merger enforcement under Section 7 of the Clayton Act remains at the top of the Commission's antitrust enforcement priorities, as it has been for some years. Compliance with the premerger notification requirements of the Hart-Scott-Rodino Act also is a high priority for the Commission, and I plan to talk about some aspects of HSR enforcement as well. As is customary, my remarks reflect my own views and not necessarily those of the Commission or any other commissioner.

A few statistics may provide some perspective on the Commission's merger enforcement program. In the fiscal year that ended last September, 1,846 transactions were reported under the Hart-Scott-Rodino Act. In the first five months of this fiscal year, 940 transactions were reported. These numbers are comparable to the early 1980's -- 1600 transactions were reported in 1985 -- but the peak year in merger activity, as measured by the number of transactions reported under HSR, remains 1989, when 2,883 transactions were reported.

The number of mergers is part of the story -- now what about the level of enforcement? The Commission has maintained a high level of enforcement activity in investigating mergers and challenging those that we have reason to believe are anticompetitive. One rough measure of the level of resources devoted to enforcement is the number of second requests issued under the Hart-Scott-Rodino Act. Second requests are issued only in the relatively small number of transactions in which the Commission believes that further examination is warranted. In fiscal year 1993, the Commission issued forty second requests. That works out to slightly more than 2% of reported transactions. In the first five months of this fiscal year, the Commission issued 17 second requests, slightly less than 2% of reported transactions.

Another yardstick of the Commission's enforcement activity is the number of proposed transactions that we decide to challenge. Our primary enforcement tool in Section 7 cases is to seek a preliminary injunction in federal district court to block a merger pending an administrative trial. In fiscal year 1993, the Commission authorized three preliminary injunction actions in merger cases. Preliminary injunctions were granted in two cases: Alliant Techsystems(1) involved tank ammunition; Columbia Hospital Corporation(2) involved hospitals in Florida. In the third case, which involved leased railroad boxcars, the parties abandoned the proposed transaction after the Commission voted to seek a preliminary injunction.(3) In this fiscal year, the Commission has authorized one preliminary injunction complaint. The case involved an alleged merger to monopoly of two hospitals in Colorado.(4) The parties abandoned the transaction after the Commission announced its decision to seek a preliminary injunction.

Looking back a year, in 1992, the Commission did not authorize any preliminary injunction complaints in merger cases. The number of preliminary injunction complaints authorized by the Commission in 1992 and 1993 is down from previous years, but the decline does not signal a reduction in the Commission's merger enforcement activity. In recent years, more merger cases have been settled by consent order than in the past, and this may account for the smaller number of preliminary injunction suits. In the five years from 1983 to 1987, the Commission accepted consent orders in twenty-four merger cases. From 1989 to 1993, the Commission accepted consent orders in forty-eight merger cases, exactly twice as many as in the previous five-year period.(5)

What might explain the larger number of merger consent orders at the Commission in recent years? One possible reason is the Commission's litigation record. From 1983 through 1989, the Commission won eight preliminary injunction cases and lost only three. Recognition of this success may have resulted in greater willingness of firms to search for a solution for competitive problems. Another possible explanation for the increased number of consent orders may be the willingness of the Commission in some situations to accept remedies short of blocking the transaction or complete divestiture of overlapping assets. Instead, the Commission has fashioned alternative remedies in several cases, but I will leave that subject for another day. Yet another possible reason is the increased transparency of merger analysis, evidenced by the Commission's 1982 statement on horizontal mergers, the Antitrust Division's revised merger guidelines in 1982 and 1984, and, more recently, the 1992 Horizontal Merger Guidelines, jointly issued by the Commission and the Department of Justice. In addition, I would not want to overlook the possible contribution of careful and thorough merger analysis and solid case preparation.

Our approach to merger analysis is described in the 1992 Horizontal Merger Guidelines.(6) The Guidelines set forth general principles to be used in analyzing mergers, an "analytical road map"(7) for the process. The challenge in analyzing a particular transaction is to integrate the set of complex facts into a realistic and persuasive story of how the market works. The Guidelines are the most comprehensive and, as a practical matter, the primary reference we use in analyzing mergers. But, of course, the Guidelines are not the only source of wisdom regarding Section 7 of the Clayton Act. The courts continue to make important contributions to Section 7 law, and the Commission also contributes through its adjudicative opinions.

Several interesting merger decisions have come down in recent years. In a case involving defense industry suppliers, the Commission obtained a preliminary injunction in federal district court to block the proposed acquisition by Alliant Techsystems of Olin's Ordnance Division.(8) The firms were the only two suppliers of ammunition for battle tanks, and their only customer was the Department of Defense. The Army had decided to shift to a sole-source contract, so only one of the two suppliers would survive in the long run. The question under Section 7 was whether taxpayers should have the benefit of competition between the two firms in determining which of them would win the Army sole-source contract. By itself, the case is not unusual (it involved standard application of familiar Section 7 principles), but it may be significant in the context of the times. The general downsizing of the military may precipitate a number of defense industry mergers, and there were murmurings of an antitrust exemption for the defense industry. No such exemption has existed in the past.

The district court in Alliant said that "circumstances could arise under which national defense priorities would override" the public interest in preserving competition but declined to credit the parties' assertion that "enjoining the merger might impair military operations."(9) The Army's official position on the proposed merger was "no objection," and it took "no official position" concerning the antitrust implications of the transaction.(10)

Concern about consolidation in the defense industry led to the formation last fall of the Task Force of Defense Science Board, chaired by Professor Robert Pitofsky. Task force members include representatives from business and government, including staff members from the Commission and the Antitrust Division, and public interest groups. The task force was to study the role that the Department of Defense might take in connection with defense industry supply mergers and to make recommendations for future action. I understand that the task force has concluded its public meetings and is in the process of editing its report.

Two recent cases suggest the value of competition in the defense industry. In United States v. Alliant Techsystems(11) -- yes, the same Alliant but not the same transaction -- the complaint alleges that the only two U.S. producers of certain cluster bombs unlawfully agreed on a bid for a 1992 U.S. Army contract. The negotiated order requires each of the defendants to pay more than $2 million as a refund of overcharges. According to the Department of Justice, the suit will save taxpayers $12 million, because of the court-ordered refunds and a reduced contract price.(12) In 1989, the Commission obtained a preliminary injunction to block a proposed merger between two makers of image intensifier tubes used in night vision devices,(13) saving taxpayers an estimated $20 million in military procurement expenditures. The estimate of savings was based on the price that the Department of Defense expected to see and the actual bid later submitted by one of the parties to the transaction that had been enjoined.

The University Health(14) case in 1991 also was important. The court of appeals upheld the Commission's jurisdiction under Section 7 of the Clayton Act to challenge a merger involving a nonprofit entity. The courts had not previously decided the question. The court in University Health also observed, in a much quoted passage, that "an efficiency defense to the government's prima facie case in section 7 challenges is appropriate in certain circumstances."(15) The observation may have far reaching implications. As you know, the Merger Guidelines have treated efficiencies as a matter of prosecutorial discretion,(16) and the courts have not previously embraced an efficiencies defense. The court in University Health also acknowledged the difficulties of proving and measuring efficiencies and concluded that the merging firms had "failed to demonstrate that their proposed acquisition would yield significant economies."(17) At the Commission, we are receptive to efficiency arguments, but experience suggests that they are difficult to document.

Last year, the Commission won another Section 7 case. The Court of Appeals for the Ninth Circuit affirmed the Commission's decision in Olin Corporation,(18) requiring divestiture of certain swimming pool chemical assets. The Supreme Court denied certiorari last month. Market definition was an issue in Olin, and the Commission's opinion illustrates its approach to defining relevant product markets. The two products in Olin, isocyanurates (or "isos") and calcium hypochlorites (or "cal hypo"), were dry swimming pool sanitizers. Sanitizers are periodically added to swimming pools to kill algae and bacteria. Both isos and cal hypo were available in granular or tablet form, and a consumer could buy a year's supply of either in a single trip to the store.(19) Isos offered greater convenience for consumers, because isos last longer than cal hypos. In addition, although cyanuric acid occasionally must be added to a pool treated with cal hypo (to act as a stabilizer), there is no need to deal with cyanuric acid when the pool is treated with isos. The greater convenience of isos was reflected in a price premium for isos.

Isos constituted a product market, the Commission concluded, because consumers of isos likely would not switch to another product in the event of an increase in the price for isos. Isos and cal hypo also constituted a relevant market. The price of cal hypo was constrained by the price of isos, because when the price spread between cal hypo and isos narrowed, a small increase in the price of cal hypo would induce consumers to switch to isos. Because of the greater convenience of isos, when the two products were similarly priced, consumers would buy isos. But a seller with market power over both cal hypo and isos could profitably increase the price for both, because consumers were unlikely to switch to other products, such as liquid pool bleach, in sufficient numbers to defeat the price increase.

The case is interesting, because it demonstrates the application of the Guidelines' price test -- a small but significant and nontransitory increase in price -- in defining product markets. It shows that market definition depends on the relative prices of products and the effect that changes in those prices have on consumer behavior.

The decisions in Owens-Illinois(20) and Occidental,(21) the Commission's most recent opinions in Section 7 cases, illustrate the importance of the analysis of non-structural market facts in merger cases. In Occidental, the Commission found liability in a polyvinyl chloride market that was only moderately concentrated under the Guidelines. In Owens-Illinois, the Commission dismissed the complaint despite highly concentrated glass container markets. It seems to me that this is incontrovertible proof that the Commission means it when it says that market concentration is only a starting point in Section 7 analysis. We take the other factors that are identified in the Guidelines seriously. These two cases are not isolated examples -- just good demonstrations of the point in two recent decisions. I also commend these opinions to you because they may give you a sense of how the Commission actually works through its merger analysis.

Section 7 cases are complex and difficult, and each case depends on its particular facts. The scope and depth of the factual inquiry in a merger investigation is quite extensive. As a result, it is difficult and often futile to attempt to draw meaningful comparisons among transactions based on publicly available information. As a practical matter, when a case is settled by a negotiated consent order, when the parties decide to abandon a transaction before a complaint is filed or litigated, or when the government declines to bring a case, few of the relevant facts will be public, primarily because of the laws concerning confidentiality. One message that I would like to leave with you today is that attention to the analytical process described in the Guidelines and in the litigated decisions, and application of it to the particular facts, are likely to be more useful in advising your clients than imperfect comparisons to transactions for which limited information is available.

From time to time, we all would like to escape from the complexity of this fact-intensive inquiry to the security of a simple, objective standard that could be met with easily quantifiable evidence. There is none in modern merger analysis, but two aspirants may be worth mentioning. One is the numbers, that is, market share and concentration data; the other is customer affidavits. Both have a role in the analysis of mergers, but neither should be used as a security blanket.

Concentration data are important in Section 7 cases, but their role is limited. Given the current state of knowledge about the connection between concentration and anticompetitive effects, concentration and market share data provide a starting point in merger analysis and are useful in providing a degree of predictability at both ends of the spectrum, identifying a "safe harbor" at the low end of concentration and, at the other end, the highly concentrated range in which a challenge is more likely. But concentration data have no precise predictive value. There is no short-cut substitute for a careful and intensive exploration of the relevant facts.

Market share can be measured in terms of dollars or units of sales, shipments, production, capacity or reserves.(22) Assessing market shares on the basis of sales is useful when the products are differentiated, because sales can measure the extent to which a firm influences the market. But sales may fail to tell the whole story, for example, in manufacturing markets involving homogeneous products. Firms with roughly equal sales may have different production capacities. Capacity is important, if it is available to expand output in the event of a supracompetitive price increase.

Measuring production capacity involves a number of questions, such as whether the capacity is technologically obsolete or modern and whether operation of it would be high or low cost. Production capacity that has been shut down or mothballed may be important, if the plant can be reopened quickly and economically. Capacity that could be shifted easily and economically to the relevant product must be considered. In Occidental, for example, although some smaller, older polyvinyl chloride plants could be converted to produce PVC homopolymer, most industry members believed that the older plants simply could not compete economically with newer, larger capacity, technologically sophisticated plants.

Plainly, market measurement is not an exact science. Even after market share numbers have been established, the numbers do not offer final answers. They are important in the analytical process, but the lesson of Occidental and Owens-Illinois still holds: market share and concentration data are not necessarily reliable predictors of competitive effects under Section 7.

The second would-be "security blanket" is customer affidavits. On occasion, the parties to a merger, in presenting their case to the government, seem to stray from a qualitative analysis of the factual circumstances that make anticompetitive effects more or less likely and shift to a quantitative battle of customer complaints -- which side has the greater number of customer affidavits supporting or complaining about the proposed merger.

Two assumptions appear to underlie the quest for customer affidavits. One assumption is that if anticompetitive effects are likely, we can count on customers to complain. The second assumption is the converse, namely, that if customers do not complain, anticompetitive effects are unlikely. There is some truth here, but it is incomplete.

Customers, and competitors as well, can tell us a great deal about the history of an industry, about the products and about how the industry works. We can learn from them about the costs of production, prices, delivery practices, sources of supply, and competitive abilities and disabilities. Customers are a primary source of information in a merger investigation, but we should remain alert to the possible biases and inabilities of customers that limit their ability to discern how the interplay of market forces will affect competition in the future.

Customers may be biased for or against the merging parties, or they may be susceptible to their influence. Without impugning their integrity, we can recognize that customers and their suppliers are part of the same community, that they have done business together for years, and that they are likely to continue to do business long after the merger lawyers and economists have packed their bags and left town. Customers may have interests different from those of consumers. One affiant told us that he would not object to an anticipated price increase from his suppliers, as long as his competitors faced the same price increase. Customers may lack access to all the facts that are relevant to assessing competitive implications, and they may not have the legal and economic training to assess those facts in the context of Section 7.

For example, we have seen affidavits endorsing a proposed transaction based solely on the representations of the parties that the merger would reduce costs and lower prices for consumers. A number of the affiants said, given what I've been told about the efficiencies that will come from this merger and the intent of the parties to treat this community right, I support the merger. Who wouldn't support a merger that would reduce both costs and prices? The problem, of course, is that the parties' representations were unexamined by the affiants. Assertions such as these -- we will achieve efficiencies and we will treat you right -- cannot be accepted at face value, especially when the ability to exercise market power and raise prices is at stake.(23) It is our job to examine the assertions and the underlying assumptions.

To protect against wasteful and meaningless battles of unreliable or unpersuasive customer affidavits, the fundamental principle of Section 7 cases should be kept in mind: The question in reviewing proposed transactions is whether anticompetitive effects are likely, not how many customer affidavits, pro or con, can be accumulated.

I would like to turn now to potential competition theory. Mergers or acquisitions may lessen competition in a market if one of the parties to the acquisition was perceived by incumbent firms as likely to enter or if, absent the acquisition, it would have entered the market independently. Although the cases litigated under a potential competition theory certainly should lead the Commission to take care about the proof of future entry, the anticompetitive theory of the cases remains sound.(24)

The standard for proving the likelihood of independent entry by the potential entrant has not been entirely clear. Some courts have said that the evidence should show a "reasonable probability" of entry, a standard that may derive from Section 7 of the Clayton Act, which is concerned with "'probabilities,' not 'ephemeral possibilities.'"(25) One court said that there must "be at least a 'reasonable probability' that the acquiring firm would enter the market . . . and preferably clear proof that entry would occur . . . ."(26)

The Commission in B.A.T. Industries(27) also said that there must be "clear proof" that the acquiring firm would have entered the market independently but for the acquisition.(28) The question of the day is, what is clear proof? The Commission in B.A.T. said that "[g]eneral circumstantial evidence . . . provides the best picture of whether an acquiring firm would have entered independently,"(29) suggesting that clear proof may mean something less than absolute certainty. What the Commission decided in B.A.T. was that financial studies purporting to show that independent entry would have been profitable were not sufficient to carry the day, at least not when countered by equally weighty studies purporting to show that entry would not have been profitable. This result does not strike me as surprising under almost any standard, and, as a result, the case does not seem to shed much light on the clear proof standard.

Perhaps clear proof means neither more nor less than the preponderance of the evidence, the greater weight of the evidence. This is the "touchstone of judicial decisions across the Nation,"(30) and there is little reason to think that the Commission would or even could create a different standard for assessing liability under a federal statute of general application. Not long ago, someone asked a litigator in our General Counsel's office about the origins of and authority for the preponderance-of-the-evidence standard. The litigator replied, somewhat stunned, "Well, it's a law of nature."

The Commission recently has issued several consent orders settling allegations that the acquisition would eliminate potential competition. In Atlantic Richfield,(31) for example, the Commission alleged that ARCO's acquisition of certain chemical assets of Union Carbide would, among other things, eliminate perceived potential and actual potential competition in the relevant markets. In another consent order, Roche Holding,(32) the Commission required divestitures to protect actual and potential competition in the research, development, production and marketing of several therapeutic products. In two of the markets, therapeutic vitamin C and drugs for the treatment of human growth hormone deficiency, the complaint alleged that one of the parties to the merger had a dominant share and the other was developing a competitive product. In the third market, certain therapeutics for the treatment of AIDS and HIV infection, the complaint alleged that one of the firms was among the most advanced in developing therapeutics and that the other also had engaged in research and development and had patent applications pending. The difficulty of entry into each of the markets tended to support the inference of potential entry, given the long lead times resulting from FDA regulations and the large and often insurmountable barriers resulting from patents.

The message, I think, is clear. These recent consent orders are evidence of the Commission's continuing belief that the potential competition standard is sound. Certainly it is a theory of violation you should keep in mind when analyzing proposed transactions.

Vertical merger analysis has drawn increased attention recently, perhaps because of proposed transactions in the telecommunications industries. Vertical foreclosure was one of the theories of anticompetitive effects alleged by the Commission in connection with the consent order with Tele-Communications, Inc.,(33) published for comment last November. The order, by its terms, is effective only if QVC acquired Paramount and, as has been reported, Viacom won the bidding war for Paramount. A good reference in analyzing vertical mergers is Section 4 of the Department's 1984 Merger Guidelines.(34)

Let me turn now to Hart-Scott-Rodino enforcement. The Hart-Scott-Rodino Act requires that certain proposed transactions be reported to the Commission and the Department of Justice and that waiting periods be observed.(35) The purpose of the Act was to eliminate the "midnight merger," to give the enforcement agencies an opportunity to evaluate the competitive implications of transactions before they occur. The premerger notification program depends heavily on voluntary compliance with the Act, and we view noncompliance as a very serious matter.

Let me caution you that the Commission will investigate a failure to file and will not hesitate to take appropriate enforcement action whether or not the transaction raises concern under Section 7 of the Clayton Act. The argument that we should not be concerned about the failure to file unless the transaction may have anticompetitive effects has been made and rejected.

When noncompliance with the premerger notification requirements is inadvertent and the parties file promptly after being informed of their obligation, frequently no enforcement action has been taken. In a recent case, however, the Commission obtained more than $400 thousand in civil penalties based on the acquirer's failure to file for more than seventeen months after discovery of the violation.(36) The case signals the intent of the agencies to seek civil penalties when a corrective filing is not made promptly after discovery of the omission.

Exposure to civil penalties is not the only risk of noncompliance with Hart-Scott-Rodino. An incomplete filing under HSR can delay the running of the statutory waiting periods. In one case, for example, an initial filing was deemed deficient because it omitted a document that came to light when the parties responded to second requests. The initial waiting period was started anew, and the Commission reissued the second requests. In another case, one of the parties inadvertently omitted from its initial filing a list of stores that, as it turned out, competed with stores belonging to the merger partner. Because the information was highly relevant to analyzing the competitive implications of the proposed transaction, the initial filing was bounced and the waiting period was re-started. Apparently, proofreading still pays.

Until the late 1980's, responses to second requests were deemed insufficient several times a year. We have had no occasion to do so, however, since 1988, when the Commission brought suit against an acquiring company that announced its intention to consummate the proposed transaction, although it had declined to comply fully with the second request.(37) The Commission obtained a court order blocking the proposed transaction until 20 days after the company had complied with the second request. Again, the message is clear. The Commission is serious about HSR compliance.

If you counsel clients on their HSR obligations, you probably are aware of Section 801.90 of the HSR rules, the "avoidance device" rule. Section 801.90 enables us, when we think that a transaction has been structured "for the purpose of avoiding the obligation to comply" with the Hart-Scott-Rodino Act, to attribute an obligation to file based on our version of the substance of the transaction. For example, Section 801.90 might be applied to re-evaluate an otherwise legitimate partnership, if we believe that the partnership structure was adopted to avoid the filing requirements.

The "avoidance device" rule has the potential for very broad application. What does the "purpose of avoiding" mean? Is it the sole purpose, an incidental purpose, a primary purpose, a dominant purpose or a decisive purpose? Does the existence of a legitimate business purpose, that is, a purpose other than to avoid filing, provide a safe harbor? Would a purpose to avoid or reduce (but not to evade) taxes suffice? The way to avoid Section 801.90 altogether is clear -- report your transaction under HSR -- but the circumstances in which Section 801.90 may be applied are in my view less clear. It may not come up often, but the Commission has sought penalties under this section of the rules,(38) and you should be aware of it.

This concludes my brief review of the Commission's Section 7 law enforcement program.

Endnotes:

1. FTC v. Alliant Techsystems, Inc., 1992-2 Trade Cas. (CCH) ¶ 70,047 (D.D.C. Nov. 23, 1992).

2. FTC v. Columbia Hospital Corp., 1993-1 Trade Cas. (CCH) ¶ 70,209 (M.D. Fla. May 4, 1993).

3. General Electric Co., File 931-0110 (FTC press release Sept. 29, 1993).

4. Parkview Episcopal Medical Center, File 931-0125 (FTC press release Jan. 31, 1994).

5. The Commission accepted eleven consent orders in merger cases in 1993 and five consent orders in merger cases in 1992.

6. 1992 Horizontal Merger Guidelines, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104.

7. Statement, 1992 Horizontal Merger Guidelines, 4 Trade Reg. Rep. (CCH) ¶ 13,104, at 20,569.

8. FTC v. Alliant Techsystems, Inc., 1992-2 Trade Cas. (CCH) ¶ 70,047 (D.D.C. Nov. 23, 1992).

9. Id. at 69,177.

10. Id.

11. United States v. Alliant Techsystems, Inc., Civ. No. 94-1026 (C.D. Ill. filed Jan. 19, 1994).

12. Department of Justice press release, January 19, 1994.

13. FTC v. Imo Industries, Inc., 1992-2 Trade Cas. (CCH) ¶ 69,943 (D.D.C. 1989).

14. FTC v. University Health, Inc., 938 F.2d 1206 (11th Cir. 1991).

15. 938 F.2d at 1222.

16. See 1992 Horizontal Merger Guidelines § 4, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104, at 20,573-11.

17. 938 F.2d at 1223-24.

18. Olin Corp. v. FTC, 113 F.T.C. 400 (1990), aff'd, 986 F.2d 1295 (9th Cir. 1993), cert. denied, No. 93-716 (S. Ct. Feb. 22, 1994).

19. 113 F.T.C. at 596.

20. Owens-Illinois, Inc., [1987-1993 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,162 (FTC Feb. 26, 1992).

21. Occidental Petroleum Corp., [1987-1993 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,270 (FTC Dec. 22, 1992), stipulated modified order entered, No. 93-4122 (2d Cir. Jan. 12, 1994).

22. See 1992 Merger Guidelines § 1.4.

23. See FTC v. University Health, Inc., 938 F.2d. 1206, 1223 (11th Cir. 1991) ("Economies employed in defense of a merger must be shown in what economists label 'real terms.' To hold otherwise would permit a defendant to overcome a presumption of illegality based solely on speculative, self-serving assertions." (Citation omitted.))

24. See 1984 Department of Justice Merger Guidelines § 4.1, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,103, at 20,564.

25. United States v. Marine Bancorporation, 418 U.S. 602, 622-23 (1974), citing Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962).

26. United States v. Siemens Corp., 621 F.2d. 499, 506-07 (2d. Cir. 1980) (Mansfield, J.) (citations omitted).

27. B.A.T. Industries, Ltd., 104 F.T.C. 852 (1984).

28. 104 F.T.C. at 926 & 930.

29. Id. at 939.

30. Charlton v. FTC, 543 F.2d. 903, 907-08 (D.C. Cir. 1976).

31. Docket C-3314 (issued Nov. 26, 1990).

32. Docket C-3315 (issued Nov. 28, 1990).

33. Tele-Communications, Inc., & Liberty Media Corp., File No. 941-0008 (published for comment Nov. 15, 1993).

34. 1984 Department of Justice Merger Guidelines § 4, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,103, at 20,564.

35. Section 7A of the Clayton Act, 15 U.S.C. § 18a.

36. Stephan Schmidheiny, Civ. No. 93-1852 (D.D.C. Sept. 7, 1993).

37. FTC v. McCormick & Co., Inc., 1988-1 Trade Cas. (CCH) ¶ 67,976 (D.D.C. 1988).

38. See United States v. Beazer, PLC, 1992-2 Trade Cas. (CCH) ¶ 69,923 (D.D.C. 1992).