THE GOALS OF COMPETITION LAW
Debra A. Valentine
International Antitrust Division
Federal Trade Commission
Pacific Economic Cooperation Council (PECC)
Conference on Trade and Competition Policy
Chateau Champlain Merriott
May 13-14, 1997
A clear conception of the objectives of competition policy may well be essential to framing a coherent body of substantive competition rules. But U.S. competition statutes are anything but clear about their goals. The Supreme Court has described the language of the U.S. competition laws as having "a generality and adaptability comparable to that found . . . in constitutional provisions."(1) Consequently, U.S. competition policy has never had one goal. Rather, there have been different clusters of goals that competition policy has embraced. Those goals have reflected the political, social and economic concerns of our country and the historical moment at which we adopted or revised our competition laws. Those goals also have evolved as the courts gained experience and insight from applying the competition laws in thousands of decisions since the Sherman Act was passed over a century ago. Increasingly, refinements in competition goals have reflected developments in economic analysis.
Let’s begin with our history. After the Civil War in the U.S., the economy boomed and commerce became national in scope for the first time. States loosened their laws that had limited the activities of corporations and large companies began to flourish. "Robber barons" created great fortunes by means of pooling arrangements and trusts -- ways of coordinating the actions of large companies that dominated entire industries. The railroad, oil, steel and tobacco sectors were among those controlled in this fashion. The power of these combinations led to a popular outcry. In response, Congress passed our first antitrust statute in 1890. The Sherman Act prohibited contracts and conspiracies in restraint of trade as well as monopolization of or attempts to monopolize trade.(2) Businessmen circumvented the first prohibition against trade- restraining contracts and agreements among competitors by inventing holding companies, which simply acquired the securities of, and control of, member corporations of the trusts and thereby eliminated the need for individual members of the trusts to coordinate their activities. Congress reacted by enacting the Clayton Act(3) and the Federal Trade Commission Act ("FTC Act").(4) The Clayton Act prohibited stock acquisitions, the effect of which may be substantially to lessen competition between the acquiring and acquired corporations. It also prohibited price discrimination, tying and exclusive dealing when competition is likely to be injured. The FTC Act created the Federal Trade Commission and authorized it to prevent firms from engaging in unfair methods of competition.(5)
Gaps still remained in the competition law, but World War I, the Depression, the New Deal recovery and World War II occupied the country and our legislators. The only addition to the body of U.S. competition law during that period was the Robinson-Patman Act,(6) which amended the Clayton Act to prohibit price discrimination in certain circumstances.(7) Finally, in 1950 Congress enacted the Celler-Kefauver amendments to make the Clayton Act applicable to asset acquisitions and acquisitions of firms that were not direct competitors. At that time, Congress perceived a continually increasing trend toward economic concentration in the U.S. economy. While in 1909, the 200 largest non-banking corporations owned about one-third of all corporate assets, by 1940, they held 55%. That concentration increased further during the Second World War, in large part due to the federal government’s war production efforts.
What goals did Congress seek to protect with these competition laws enacted over a 60 year span? One set of goals centered on somewhat Jeffersonian ideals of protecting individual autonomy, dispersing economic and political power and limiting large concentrations of economic power. These values flowed very much from the pressures and trends of the periods leading up to the Sherman Act, Clayton Act and even the 1950 Celler-Kefauver Amendments to the Clayton Act. But these goals have proven difficult to apply as legal rules in a principled fashion. By the late 1960s it was clear that courts’ efforts to apply these democratic and decentralizing goals had led to arbitrary results that made antitrust law unpredictable and business planning problematic.
Nonetheless, it is worth examining these goals and understanding their roots. The first goal -- limiting large concentrations of economic power and dispersing economic and political power -- flowed from Congress’ concern about the monopoly power of the great industrial trusts. See, e.g., 51 Cong. Rec. 14,222 (1914) (remarks of Sen. Thompson) (giant corporations had a monopoly "upon practically everything we produce, everything we eat and wear, and everything we use in the construction of the homes in which we live.") In part there was a political dimension to this concern. Congress believed that trusts sought not only industrial domination but "political supremacy." Some Members of Congress feared that the wealthy and privileged few would usurp political power, leading to socialism "as the properties of all the people pass into the hands of a few trust magnates."(8)
In 1950s at the time of the Celler-Kefauver Amendments, the concentration trend was similarly viewed as a threat to the entire economic, social and political fabric of the nation. Concentration of economic power in too few hands "would impair economic opportunity, . . . and threaten the very existence of free enterprise and political democracy."(9)
A second goal -- protecting small businesses -- was the subject of exalted rhetoric during the legislative debates. As described by Senator Thompson, "The trust wave swept over the country like a terrible cyclone, causing greater loss and destruction of property accumulated by individual effort than all of the storms and cyclones that have occurred since the flood. Men who had devoted a lifetime to a particular trade or business found themselves bankrupt in a single night and, what was really worse, left in an entirely helpless condition."(10) From early on, however, courts’ efforts to recognize this value resulted in fuzzy and questionable economic thinking, which at times suggested that consumers’ interests in low prices should be sacrificed in order to perpetuate small businesses. See, e.g., United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 323 (1897) (business combinations may even reduce the price of a good and restrain commerce by "driving out of business the small dealers and worthy men whose lives have been spent therein and who might be unable to readjust themselves to their altered surroundings. Mere reduction in the price of the commodity dealt in might be dearly paid for by the ruin of such a class.") (construing Sherman Act).
By 1950, Congress’ concern with retaining local control over industry and protecting small businesses was -- at least as expressed in the legislative debate -- if anything, greater. This heightened concern reflected in part the nature of the 1940s merger movement. In contrast to the era of the trusts in the late 1890s and early 1900s when combinations occurred almost exclusively between large firms, in the 1940s, large businesses were swallowing small firms.
A third goal embraced by the ample language of the competition statutes was the protection of individual autonomy and economic opportunity. Members of Congress viewed competition and dispersed power as the "best environment for the advancement and the welfare of mankind in the individual initiative, the individual independence, and the individual responsibility."(11) Some viewed competition law’s purpose as "encouraging investment, encouraging intelligent action and opportunity, but with the old Democratic principle underlying it all -- ?Equal rights to all and special privileges to none."(12) These concerns were equally evident around 1950 when the disappearance of small firms was viewed as threatening the fabric of a decentralized democracy and depriving individuals of control over their lives.(13)
A fourth objective, at least at the turn of the century, was the protection of labor. Because of their economic strength, the trusts enjoyed a substantial degree of protection from strikes. Indeed, an unintended consequence of the Sherman Act was its use by federal courts to enjoin strikes and limit the ability of workers to organize.(14) In the Clayton Act, Congress corrected this. It declared that labor organizations are not conspiracies in restraint of trade and made clear that workers could act jointly in bargaining with employers without fear of prosecution under the antitrust laws.
This protection of the rights of workers to combine to represent their interests, however, is not the same as competition policy protecting jobs. Our Supreme Court did recognize a failing firm defense in a Depression-era merger case when it permitted the purchase of a company facing the grave probability of business failure.(15) The Court expressed concern about preventing losses to stockholders and injury to the communities where the failing firm’s plants operated, but it also reasoned that the merger was not likely to substantially lessen competition.(16) Since 1930, the Supreme Court has not upheld the failing firm defense in a single case and the defense has rarely been successful in the lower courts. Moreover, in a consolidating or distressed industry, jobs are likely to be lost whether the weak firm merges or exits the market. Consequently, our legal system has opted for protecting workers through more direct routes such as worker retraining and unemployment benefits.(17) Indeed, during the 1995 FTC Hearings on Competition Policy in a Global, High-Tech Marketplace, there was strikingly little support for expanding the failing firm defense in order to accommodate more flexibly the problems of distressed industries (and in effect partially exempt weak firms from strict application of the competition laws).(18)
A second cluster of goals articulated by Congress and the courts from 1890 to 1950 centered around concerns that retain more resonance today. One such goal is preventing abuses of market power. Notably, one of the main targets of the Sherman and Clayton Acts was to prevent business combinations that approached or reached monopoly proportions from abusing market power. As explained by Representative Morgan, "the one thing that we wish to properly control and regulate and bring under proper subjection is the great industrial corporation that really has power -- the power to arbitrarily control prices and thus exact unjust profits from the people."(19) By the time of the Celler-Kefauver Amendments, some Members of Congress recognized that it was not just monopolists but also a few large firms acting collectively that could exercise market power. Representative Yates noted that "The greatest danger to competition today is not the growth of single large monopolistic companies in various industries, but the growth of industrial oligarchies in which power over an industry is divided among three or four large concerns. When three or four producers take the place of 20 or 30, the chances are great that price competition will be crippled, that declining markets will be dealt with by restriction of output instead of by price reduction, that the big concerns will adopt a live-and-let- live policy toward each other at the sacrifice of their efficiency and their progress . . .".(20) These are the seeds of tacit collusion, parallel conduct and coordinated interaction theories that courts had begun to recognize and that later appear in the 1992 DOJ-FTC Horizontal Merger Guidelines.(21)
Another critical objective was preserving competition. Members of Congress viewed competition as "the best environment for the advancement and the welfare of mankind,"(22) and the Clayton Act expressly spoke in terms of prohibiting mergers the effect of which "may be to substantially lessen competition." But that word can mean various things. Individual Members may have thought of competition as preserving the process of rivalry, or preventing one firm from restraining another’s economic activities (such as through tying or exclusive dealing), or ensuring a fragmented marketplace in which small businesses could survive. By the time of the Celler-Kefauver Amendments, the threat to competition that oligopolies posed was viewed, at least by some, in the more familiar economic terms articulated by Representative Yates above -- crippling price competition and restricting output.
Today there is widespread consensus that the purpose of the U.S. antitrust laws is to ensure a competitive market. Indeed, a basic principle of those laws is that they protect competition, not competitors. In the words of the DOJ-FTC International Guidelines: "For more than a century, the U.S. antitrust laws have stood as the ultimate protector of the competitive process that underlies our free market economy. Through this process, which enhances consumer choice and promotes competitive prices, society as a whole benefits from the best possible allocation of resources."(23)
Yet another goal that has endured from the start is protecting consumers and consumer welfare. Members of Congress did not quite employ today’s language of ensuring that consumers have a choice of goods and services at competitive prices and quality. But some Members did view consumers as the ultimate beneficiaries of the competition laws. As Senator Sherman saw it, the legislation that became the Sherman Act aimed to prevent monopolistic overcharge "which makes the people poor."(24) Likewise, Members of Congress wanted to prevent trusts from "exact[ing] unjust profits from the people."(25) As Senator Thompson put it: "The chief purpose of antitrust legislation is for the protection of the public, to protect it from extortion practiced by the trust, but at the same time not to take away from it any advantages of cheapness or better service which honest, intelligent cooperation may bring."(26) Today’s accepted principle that the antitrust laws protect competition, not competitors, flows from the economic recognition that those firms that best meet the needs of consumers with the lowest prices and the best service will prosper.
A final goal, one that has become increasingly prominent, is enhancing economic efficiency. The authors of the Sherman Act were not oblivious to efficiency values. For example, legislators never intended the monopolization provision of the Sherman Act to apply to firms "who merely by superior skill and intelligence . . . got the whole business."(27) But Congress generally regarded trusts as inefficient. One Member claimed that "[n]o trusts show cheaper cost of production than do the smaller independent plants."(28) Yet some legislators recognized that some combinations could create efficiencies -- that "intelligent cooperation may bring" certain "advantages of cheapness or better service."(29) At the time the Celler-Kefauver Amendments were debated, Representative Celler acknowledged that a merger of two small companies might enable them to compete more effectively -- read efficiently -- with larger firms.(30) Likewise, some recognized that "there is merit in the consolidation of common interests and of objectives and of properties, for the benefit of production and for efficiency in operation . . . ".(31) While efficiency goals did not play nearly the role they do today, such concerns were not totally absent. Today there is general consensus that an objective of competition policy is to enable businesses to achieve efficiencies through the optimal allocation of resources in a competitive market context.
Why has the first set of Jeffersonian-type goals receded in importance and the second set of consumer welfare and efficiency goals taken precedence? First of all, there is a tension, if not an inconsistency, between the two sets of goals. By focusing solely on deconcentrating markets and protecting small, inefficient competitors for numbers’ sake, a competition official cannot insure that consumers have access to goods at a competitive price, quantity and quality and that society benefits from efficiencies and the best possible allocation of resources. Courts have had to choose between competition and the amelioration of economic distress of individual firms and workers, and between efficiency and the retention of large numbers of small, locally owned competitors. They have increasingly chosen competition, consumer welfare and efficiency over the alternative social and political goals.
There are two obvious areas where preserving small businesses will conflict with consumer welfare or efficiency. First, a court might permit small producers to lessen competition by a cartel agreement and gain a profit above the competitive level. The Supreme Court flirted briefly with this in Appalachian Coals, Inc. v. United States, 288 U.S. 344 (1933). In that case decided during the Depression, the Court permitted bituminous coal producers to form a marketing cartel, noting that the "industry was in distress." Id. at 372. I can think of no subsequent case where a court countenanced a price-fixing cartel for the sake of small producers.(32)
Another instance is where a court prevents a firm or firms from achieving efficiencies -- even though no exercise of market power is possible -- in order to protect less efficient, likely smaller firms. While no firm is profiting from supracompetitive prices, consumers are denied the benefits of efficiencies and lower prices. Perhaps the most egregious examples of choosing small producers over consumers occurred in Brown Shoe Co. v. United States, 370 U.S. 606 (1962) and United States v. Von’s Grocery Co., 384 U.S. 270 (1966). In Brown Shoe, the Supreme Court prohibited a merger between two manufacturers and retailers of shoes, even though the Court conceded that the market was "fragmented" and that some of the merger-related "results of large integrated or chain operations [would benefit] consumers." Id. at 344. By blocking an acquisition in an unconcentrated market in order to protect small businessmen, the Court chose to ignore the possibility that a somewhat larger shoe store chain would be more efficient and result in lower prices for consumers. As the Court insisted: "[W]e cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization." Id.
In Von’s Grocery, the Supreme Court held unlawful a merger of two grocery store chains holding a combined share of 7.5% of the grocery market in Los Angeles. The total number of grocery stores in L.A. was in the thousands, the four leading firms accounted for 24.4% of sales, and the top eight firms accounted for 40.9%. Again, the Court wholly discounted the fact that chain grocery stores tend to have some lower per-unit costs than independent grocery stores, and that the benefit of lower costs likely would be passed on to consumers so long as the market remains competitive. Today no serious antitrust practitioner believes that competition was threatened in these two cases. Nor would a court today chose small firms over individual consumers.
Second, our economic understanding has evolved. This improved understanding allowed the courts, beginning in the 1970s, to focus on the market effects of business conduct, both in terms of anticompetitive effects such as output reduction or price increases and procompetitive effects such as efficiencies.(33) Another benefit of an economic focus to competition policy is that it provides a basis for devising rational rules. Such a focus does not mean that economics always provides a roadmap for competition law. Theory may be inadequate in certain areas and empirical data may be unobtainable. Nonetheless, economics can contribute to a predictable body of law that aids business planners as well as competition officials who seek the coherent development of competition theory. By the time of the 1982 Horizontal Merger Guidelines, the competition agencies viewed concern with market power over price as virtually the only ill that the Clayton Act’s merger provision addressed.
Third, the times have changed. When the Sherman and Clayton Acts were passed, the United States was effectively an island. We engaged in little export or import trade. And the situation in 1950 when the Celler-Kefauver Amendments were passed also was far different from today and allowed for a more relaxed attitude toward values of competition and efficiency. As described by Professor Areeda: "Riding the crest of World War II successes and implementing the pent-up technology of the 1930s and the war years, American industry seemed invincible. In that frame of mind why not err on the side of preserving large numbers of rivals, and limiting their collaboration? Even if efficiency or innovation suffered what did that matter?"
By the mid to late 1970s, the situation had changed dramatically. The country faced growing inflation, lower productivity, an increasingly negative balance of payments, and increasing concerns about our ability to keep pace with aggressive foreign competition. These factors contributed to a national mood change that placed a growing emphasis on productive efficiencies. Indeed, it is striking that when the Sherman, Clayton and Celler-Kefauver Acts were passed, the competitive significance of imports and the establishment of foreign-owned manufacturing operations in the U.S. were not even issues in the legislative debates. By the 1970s, foreign competition was here and it has increased exponentially since then.
Now we don’t pretend to have all the answers and we are learning more all the time. One area where we continue to struggle is with how competition policy can pursue efficiency goals yet also protect consumer interests. Efficiency and consumer welfare are not coterminous. While some Chicago School thinkers and 1980s competition enforcers generally viewed them as equivalent, they are distinct concepts. (The Chicago School approach was not disingenuous, however. It believed that consumers ultimately would benefit if a merger increased allocative efficiency (that is, total social wealth), even if the merged firm gained market power and raised prices (that is, some wealth shifted from consumers to producers and stockholders.))
Since then, some academicians such as Joe Brodley have helped us to think more precisely about different types of efficiencies and their respective contributions to wealth creation and resource distribution. This understanding enables competition officials to make conscious decisions about how to apply competition laws so as to harmonize efficiency and consumer welfare goals in order both to enhance aggregate social wealth (efficiency) and ensure that consumers receive an appropriate share of that wealth (consumer welfare). Today, U.S. competition enforcers generally believe that consumers’ appropriate share is that which a competitive market provides.
Let me quickly sketch Brodley’s three types of efficiencies -- production, innovation and allocative efficiencies. According to Brodley: "Production efficiency is achieved when goods are produced using the most cost-effective combination of productive resources available under existing technology. Innovation efficiency is achieved through the invention, development, and diffusion of new products and production processes that increase social wealth. Allocative efficiency is achieved when the existing stock of goods and productive output are allocated through the price system to those buyers who value them most, in terms of willingness to pay or willingness to forego other consumption."(34)
Significantly, innovation efficiency or technological progress is the most important factor in the growth of output in the industrialized world. Congress recognized the importance of innovation efficiencies in the National Cooperative Research Act of 1984 and the National Cooperative Research and Production Act of 1993.(35) While competition policy should whenever possible take account of the importance of innovation efficiencies, they often are very difficult to measure. The new revisions to the efficiency section of the DOJ-FTC Horizontal Merger Guidelines both acknowledge the potentially procompetitive possibilities and the assessment dilemmas of innovation efficiencies.(36)
As Brodley also explains, production efficiency, which is achieved by using existing technology to produce goods at least cost, is more important than allocative efficiency, which is concerned with maximizing the consumption value of the existing stock of social wealth. This is true for two reasons. First, production efficiency increases wealth over the whole range of output. In contrast, allocative efficiency increases wealth only at the margin. Second, because the gains from lower production costs are recurring and cumulative, production efficiency affects the growth of future wealth. In contrast, allocative efficiency, which is achieved when goods are priced at marginal or incremental cost, maximizes wealth at a fixed point in time. Finally, production efficiencies are the most measurable (which is not to say that they are easy to assess).(37) The new DOJ-FTC efficiency guideline revisions likewise recognize that production efficiencies can contribute significantly to social wealth and also provide a rough sense of which types of these efficiencies are most likely to be measurable.
Brodley’s criticism of competition enforcement in the 1980s was that it focused primarily on allocative efficiency, chiefly pursuing cartels and collusion with the aim of forcing prices closer to marginal cost. Simultaneously, enforcement efforts against exclusionary behavior were drastically reduced, even though such conduct reduces production and innovation efficiency by raising the costs and lowering the return of rival firms without offsetting social benefit.(38) I believe we are redressing this imbalance today, but future efforts to think about competition and market access issues might benefit from focusing carefully on which conduct is most harmful to our collective welfare.
Finally, we are working to accommodate the goals of enhancing efficiency and promoting consumer welfare. It is critical for U.S. competition policy to ensure that consumers receive economic benefits from products and services as measured by their price and quality. First, as catalogued above, Congress and the courts have made clear that competition policy’s aim is to promote the welfare of consumers. Second, there will be no political support for competition policy if consumers do not perceive it as protecting their interests. But our competition law has also recognized the tension between the immediate interests of consumers in low prices and the incentives that motivate producers to create wealth. Accordingly, the law allows firms to gain monopolies by superior skill, foresight or effort.(39) And inventors are both entitled to patents and have no obligation to predisclose their product innovations to competitors.(40)
To some degree, the new efficiency revisions recognize that the long-run interest of consumers in the benefits from innovation and production efficiencies may well be as important as their immediate interest in falling prices. For that reason, the revisions note that "efficiencies may result in benefits even when price is not immediately and directly affected." But they caution that "[d]elayed benefits from efficiencies (due to delay in the achievement of, or the realization of consumer benefits from, the efficiencies) will be given less weight because they are less proximate and more difficult to predict."
We will continue to wrestle with how competition policy can be sensitive to efficiencies that do not substantially lessen competition and that are accomplished in a way that is least harmful to consumers. Competition policy may not have a single goal, but it is increasingly aware of what goals it is best adapted to pursue and of how to pursue them accurately and consistently.
(1) Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359-60 (1933).
(2) 15 U.S.C. §§ 1 et seq.
(3) 15 U.S.C. §§ 12 et seq.
(4) 15 U.S.C. §§ 41 et seq.
(5) 15 U.S.C. § 45.
(6) 15 U.S.C. § 13.
(7) Of all the U.S. antitrust laws, the price discrimination provision has been singularly criticized, particularly as enforced in the 1950s and 1960s, as threatening legitimate discounting, discouraging vigorous price competition, and frustrating efforts to introduce new forms of distribution systems. See, e.g., Kintner & Bauer, "The Robinson-Patman Act: a look backwards, a view forward," 31 Antitrust Bull. 571, 575-79 (1986); Symposium: Living with the Robinson- Patman Act, 48 Antitrust L.J. 843 (1985).
(8) 51 Cong. Rec. 9153 (1914) (remarks of Rep. Nelson).
(9) See Fox, "The Modernization of Antitrust: A New Equilibrium," 66 Cornell L. Rev. 1140, 1150 (1981) (describing legislative history).
(10) 51 Cong. Rec. 14,217 (1914).
(11) 51 Cong. Rec. 9153 (1914) (remarks of Rep. Nelson).
(12) Id. at 9270 (remarks of Rep. Carlin).
(13) See, e.g., 95 Cong. Rec. 11,493 (1949) (remarks of Sen. Carroll); id. at 11,485 (remarks of Rep. Celler).
(14) Earl W. Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes 993 (1980).
(15) International Shoe Co. v. FTC, 280 U.S. 291 (1930).
(16) Id. at 301-02.
(17) And precisely because the problem of displaced workers is a political and social issue, there is substantial political debate over what type of support and how much support such workers need and deserve.
(18) Anticipating the 21st Century: Competition Policy in the New High-Tech, Global Marketplace, FTC Staff Report, Vol. I, Chap. 3 at 14, 17 (1996).
(19) 51 Cong. Rec. 9265 (1914).
(20) 95 Cong. Rec. 11,493 (1949).
(21) See, e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 2908 (1939); United States v. Container Corp., 393 U.S. 333 (1969); DOJ-FTC Horizontal Merger Guidelines at 2.1, 2.11, 2.12 (April 1992).
(22) 51 Cong. Rec. 9153 (1914) (remarks of Rep. Nelson).
(23) DOJ-FTC Antitrust Enforcement Guidelines for International Operations at 1 (April 1995).
(24) 21 Cong. Rec. 2461 (1890). See also Standard Oil Co. v. United States, 221 U.S. 1, 52 (1911) (evils of monopoly include consumer injury through price fixing).
(25) 51 Cong. Rec. 9625 (1914) (remarks of Rep. Morgan).
(26) 51 Cong. Rec. 14,223 (1914).
(27) 21 Cong. Rec. 3151-52 (1890).
(28) 51 Cong. Rec. 9153 (1914) (remarks of Rep. Nelson).
(29) Id. at 14,223 (remarks of Sen. Thompson).
(30) 95 Cong. Rec. 11,488 (1949).
(31) Id. at 11, 503 (remarks of Rep. Doyle).
(32) Export cartels are a separate issue, since they may be exempted from U.S. competition laws or, even if a case were brought, a court might find no violation since U.S. consumers may not be harmed.
(33) Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1 (1979); Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977); United States v. General Dynamics Corp., 415 U.S. 486 (1974).
(34) Brodley, "The Economic Goals of Antitrust: Efficiency, Consumer Welfare, and Technological Progress," 62 N.Y.U. L. Rev. 1020, 1025 (1987).
(35) 15 U.S.C. §§ 4301-06.
(36) Revision to the Horizontal Merger Guidelines (April 1997) (noting, for example, "Efficiencies also may result in benefits in the form of new or improved products, . .", and "Other efficiencies, such as those relating to research and development, are potentially substantial but are generally less susceptible to verification and may be the result of anticompetitive output reductions.").
(37) Brodley, supra note 34, at 1027-29 generally.
(38) Id. at 1025.
(39) United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945).
(40) Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980).