Northwestern Journal of International Law & Business, Vol. 9, No. 2 (Fall 1988), pp. 297-332


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 Gestzgegen Wettbewerbsbeschrankungen, and, finally, will suggest that the German model constitutes an appropriate compromise between the libertarian and populist extremes in the United States.