Business: New Thrust in Antitrust

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Some mergers enhance competition. Oil would seem an unlikely industry for this to occur in. But Thornton Bradshaw, president of Atlantic Richfield, argued that the acquisition in 1966 by the Atlantic Refining Co. of the Richfield Oil Corp. turned two so-so firms into a company strong enough to compete against the industry giants. Yet Bradshaw noted that his powers, like those of every high corporate executive, are severely limited: "Every decision made at my desk is influenced by some and sometimes most of the following: environmentalists, consumers, tax reformers, antinuclear protesters, the constraints of Government, the DOE [Department of Energy], the EPA [Environmental Protection Agency], ICC [Interstate Commerce Commission], the FTC, the state governments, the municipal governments, the effect on inflation, on labor union attitudes, and on the OPEC cartel."

Since both the extent and the effects of industrial concentration are uncertain, most speakers favored a go-slow policy to sort out the facts before trying to enact new antitrust legislation. Said Du Pont's Shapiro: "In view of our domestic economic needs and our international competitive problems, we would do well not to go off on major, and perhaps irreversible, social experiments until there are convincing reasons to do so."

In foreign trade particularly, the U.S. is already suffering from its restrictive antitrust laws, which hold American companies to tougher standards overseas than competing foreign firms must meet. Kennedy-Metzenbaum would aggravate the problem. Though big U.S. companies would be stopped from buying up others at home, foreign investors would be allowed to come in and continue acquiring almost as much as they want. Said Republican Senator Orrin Hatch of Utah, a Judiciary Committee member who has fought hard against the bill: "We are at a time in our history when we should be doing all in our power to make it easier, not harder, for our corporations to compete on an international basis." Senator Jacob Javits of New York, the ranking Republican on the Senate Foreign Relations Committee, argued that the U.S. should not force American companies doing business abroad to adhere to antitrust standards tougher than those of the countries where they operate. Felix Rohatyn, a partner in the investment banking house of Lazard Freres, noted that governments in Europe and Japan are urging the merging of some of their own big firms to sharpen their ability to compete in world markets.

Many speakers also criticized the Kennedy-Metzenbaum bill for shifting the burden of proof. The U.S. Government would not have to prove that a proposed merger might hurt competition, but the company wanting to expand would have to prove that competition would actually increase. Economist MacAvoy suggested that this approach was little more than a power play to make it easier for the Government to prove its antitrust cases. But, he contended, "the burden of proof should rest with the Michael Pertschuks of this world." The FTC is already empowered to act as both the prosecutor and judge in antitrust cases, and Senator Hatch is drafting legislation to transfer the judge's role back to the courts.