Competition and/or Efficiency: A Review of West German Antimerger Law as a Model for the Proposed Treatment of Efficiency Promotion under Section 7 of the Clayton Act

Ponsoldt, James F., Westerhausen, Christian | January 1, 1988

As many commentators have noted, the end of Ronald Reagan’s presidency likely will engender a renewed debate concerning the proper level of government intervention in business integrations. During the past eight years, the number and size of corporate mergers have risen astronomically. Such unchallenged mergers have occurred while the Reagan Administration and the Democrats in the United States Congress (“Congress”) have debated the appropriateness of merger control laws, both in testimony at oversight hearings and in conflicting proposals for amending Section 7 of the Clayton Act (“Section 7”). The purpose of this Article is to demonstrate the need for legislative change in the Clayton Act. Such change should be based upon the merger control legislation enacted in the Federal Republic of Germany (“Germany”), which explicitly recognizes an appropriate role for the efficiency effects of mergers but, at the same time, often subordinates the role of efficiency to the quite separate goal of protecting competitive markets, when those goals conflict. This Article first will briefly summarize the existing state of United States antimerger law, insofar as Section 7 of the Clayton Act and its history incorporate efficiency considerations. The Article then will review the German merger control legislation, particularly focusing upon the efficiency considerations under Sections 22-24a of the Gesetzgegen Wettbewerbsbeschrankungen (“GWB”), and, finally, will suggest that the German model constitutes an appropriate compromise between the libertarian and populist extremes in the United States.