THE ROLE OF EFFICIENCY CONSIDERATIONS IN THE FEDERAL TRADE COMMISSION'S ANTITRUST ANALYSIS

Efficiency considerations have assumed an important role in antitrust analysis over the last two decades. Although traditional rule of reason analysis has long entailed a balancing of anticompetitive effects of a course of conduct or transaction against the procompetitive benefits (or efficiencies) associated with the conduct or transaction, it was only with the Chicago revolution in the late 1970s that efficiencies came to occupy a central role in antitrust analysis. Yet even today, one must search far and wide to find a case in which efficiencies, described and analyzed as such, trumped an anticompetitive story. The problem has been, as FTC Chairman Robert Pitofsky has observed, one of proof: claims of efficiencies are "easy to assert and sometimes difficult to disprove."2 To this observation it is useful to add the corollary that the difficulty lies not only in disproving spurious efficiency claims, but in proving valid ones as well. Valid efficiencies can be extraordinarily difficult to prove.