Mergers, antitrust, and the china cardClick here to read the full article online
This essay explores the invocation of competitiveness, and particularly competitiveness with China, to justify transactions or conduct under the antitrust laws. We limit the inquiry to the United States and the European Union. We deal prominently with mergers but also include antitrust in general. The aim is to explore how the words ‘competitiveness’ and ‘international competitiveness’ are used; the extent to which the usage fits neatly into traditional antitrust analysis (i.e., whether the transaction helps or hurts market competition), or whether it is offered as a defense to an anticompetitive transaction, proposing to sacrifice competition to achieve a greater good (standing up to China). If the latter, is competitiveness a public interest factor like national security or sustainability? If so, what are the standards if the defense is admissible under law?"