The Competition Bureau’s Rejection of Efficiency as the Key Criterion in Competition Policy: A Critique

Abstract

The Competition Bureau's submission to a consultation initiated by The Hon. Howard Wetston is wide-ranging in its recommendations for the future direction of the Canadian Competition Act. This article focuses on two critical issues in the submission: the appropriate goals of the Act; and the future of the efficiencies defence to mergers. The article concludes that the Bureau is unpersuasive on both issues. On the question of the goals of the Act, the Bureau's support for the status quo rather than a clearer emphasis on efficiency overlooks a number of considerations, including the ways in which efficiency has been dominant to date in practice, which explains why there have not been many significant conflicts between goals in practice (though there have been some, which have led to indeterminacy in the law). On the efficiencies defence, the Bureau offers assertions without elaborating their justification, and offers an amendment-efficiencies ought to be merely one factor to consider in assessing a merger, rather than a defence-without explaining its operation in practice, or its advantages, which are not apparent.