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Re: Joel Klein's lobbying for Boeing -Reply
I guess I have a slightly different perspective than Jamie. My view is that
the primary policy role of the chief U.S. antitrust enforcement official is to
promote U.S. interests in the efficiency of the marketplace. The antitrust
head does this is two principal ways:
(1) bringing enforcement actions in situations where the conduct in
question reflects a market failure, the market failure reflects an antitrust
violation, and the violation has a remedy that will likely make consumers
better off than they were when the violation was in place; and equally
(2) closing investigations as quickly as possible where the conduct in
question does not reflect a market failure, does reflect a market failure
but is not the result of an antitrust violation, or constitutes a technical
antitrust violation but is not remediable in the sense that the antitrust cure
is better than the disease.
In the other words, the government should intervene when it should
intervene, and it should get out of the way as quickly as possible and
permit private to conduct their affairs in an unfettered fashion when
intervention is not warranted.
In the Boeing case, the U.S. government (in the form of the FTC)
determined that the transaction would not harm U.S. efficiency interests
and indeed did not constitute a violation of U.S. antitrust law. The EU
took a different view. It seems to me perfectly appropriate for the U.S.
government to try to change the EU's mind to align EU actions with U.S.
Now as to what U.S. officials to do what things. I suspect that Joel Klein
personally did not threaten EU officials with a trade war if they did not go
along with the Boeing deal, but rather argued the U.S. view that the
merger would not reduce efficiency (i.e., be anticompetitive in a U.S.
antitrust law sense) and therefore should not be opposed by the EU on
If Joel was asked and offered his views as to what other officials in the
U.S. (such as those in the white House, USTR or commerce) might be
urging as a response to an EU intervention, that too seems to me to be
perfectly appropriate. After all, the more information the EU has about
the likely U.S. response, the more informed view it can take in making its
As long as Klein kept his primary focus on the competitive effects of the
transaction and was not personally making the trade war case to the EU,
I do not see how the EU officials could respond adversely as a matter of
principle to his visit. Indeed, they should have welcomed it, even if they
disagreed with the message.