E. Thomas Sullivan

Can International Antitrust Be Saved for the Post-Boeing Merger World? A Proposal to Minimize International Conflict and to Rescue Antitrust from Misuse

The different approaches taken by the U.S. and E.U. enforcement authorities on the lawfulness of the Boeing/McDonnell-Douglas merger raises the prospect of increasing conflict among the worlds antitrust authorities. Both the U.S. and the E.U. claim the right to evaluate transactions which, although occurring abroad, produce economic effects within their borders. Traditional means of avoiding conflict through doctrines of comity or other balancing processes seem unpromising. We make a new proposal for minimizing conflict in the antitrust evaluation of transactions involving significant multimarket effects. We observe that all competition laws are based, to a significant extent, on the promotion of efficiency. Many such laws, however, also embody significant distributional concerns, such as protecting small business, protecting employment or promoting fairness. The most important differences in competition laws among jurisdictions thus are traceable primarily in the amount and design of the distributional concerns which they incorporate. We therefore propose, as a means of lessening international conflict over competition policies, that when a jurisdiction asserts the authority to evaluate a transaction involving significant multimarket effects, that the acting jurisdiction base its evaluation on the common element in all antitrust laws: efficiency. By forsaking distributional concerns which are unique to its domestic constituency, that jurisdiction avoids imposing its domestic policies on others and still performs a valuable service to the global community by enforcing the efficiency standard common to most antitrust laws.